Hong Kong Court of Final Appeal

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Hong Kong Court of Final Appeal
香港終審法院
The logo features the Court of Final Appeal Building
22°16′51″N 114°09′37″E / 22.28090°N 114.16035°E / 22.28090; 114.16035
Established	1 July 1997; 27 years ago (1997-07-01)
Location	8 Jackson Road, Central, Hong Kong[1]
Coordinates	22°16′51″N 114°09′37″E / 22.28090°N 114.16035°E / 22.28090; 114.16035
Composition method	Appointment by the Chief Executive acting in accordance with the recommendation of the Judicial Officers Recommendation Commission with Legislative Council endorsement
Authorised by	Hong Kong Basic Law Hong Kong Court of Final Appeal Ordinance
Judge term length	Until 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 positions	One Chief Justice, at least three permanent judges and at most 30 non-permanent judges
Website	hkcfa.hk
Chief Justice of the Court of Final Appeal
Currently	Andrew Cheung
Since	11 January 2021

This article is part of the series: Courts of Hong Kong
Law of Hong Kong
Administration Chief Justice of the Court of Final Appeal Judiciary of Hong Kong Judiciary Administrators
Civil courts Court of Final Appeal High Court Court of Appeal Court of First Instance District Court Special Courts and Tribunals The Coroner’s Court The Lands Tribunal The Labour Tribunal The Small Claims Tribunal The Obscene Articles Tribunal
Criminal courts Court of Final Appeal High Court Court of Appeal Court of First Instance District Court Magistrates' courts
Criminal prosecution Secretary for Justice Director of Public Prosecutions Prosecutions Division of the Department of Justice
Legal profession Hong Kong Bar Association Barrister Law Society of Hong Kong Solicitor
v t e

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.

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

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.

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 is as follows:

1. Edward Timothy Starbuck Woolley (1997–1999)
2. Christopher Chan Cheuk (1999–2000, acting)^[4]
3. Betty Kwan Ka-ching (2000–2002, acting)^[5]
4. Queeny Au-yeung Kwai-yue (2002–2007, acting)^[6]
5. Simon Kwang Cheok-weung (2014–2018; acting from August 2007 to March 2014)^[7]
6. Wong King-wah (since June 2023; acting from September 2018 to May 2023)^[8]

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 (not all Hong Kong non-permanent judges are permitted to hear National Security Law cases).

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). It is the first court to be led by a chief justice who did not receive a legal degree in the United Kingdom; Andrew Cheung received his LLB from the University of Hong Kong and the LLM from Harvard Law School. It is also the first court to be led by a Chief Justice who has never taken Silk (appointed as either QC/KC or SC). Andrew Cheung has been described as a "conservative", in contrast to his relatively liberal predecessors as chief justice.^[9][10] Nonetheless, the Cheung court has seen a number of liberal decisions, especially in the field of LGBT rights.

Cheung assumed the role of chief justice in the wake of the 2019–2020 Hong Kong protests, and immediately following the enactment of the highly controversial 2020 Hong Kong national security law. As a result, Cheung's tenure as chief justice has been underlaid by concerns regarding the rule of law in Hong Kong and the independence of Hong Kong's judiciary,^[9] with a record number of overseas non-permanent judges stepping down from the court between 2021 and 2024.^[11][12] That said, during Cheung's tenure, two overseas non-permanent judges, Patrick Keane and James Allsop, have joined the CFA, and a number of other overseas non-permanent judges have also renewed their appointments.^{[13][14][15][16]}

• 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)

The Cheung Court was the first CFA bench to hear substantive final appeals arising from the 2020 National Security Law. The Cheung Court have issued landmark decisions on Hong Kong courts' competency to review acts of the national legislature, LGBT rights, the Bill of Rights, national security, the freedom of expression and assembly, and commercial law. Major decisions of the Cheung court include:

• HKSAR v. Lai Chee Ying (2021): In a per curiam decision, the Court displaced the presumption of bail in common law and the Criminal Procedure Ordinance, holding that, with regard to national security offences, the NSL carves out a specific exception from the bail regime; the presumption in Article 42(2) of the NSL being that no bail should be granted. Hong Kong courts can only consider granting bail if the court finds sufficient grounds to believe that the accused would not continue to commit offences endangering national security.^[17][18]
• Secretary for Justice v Timothy Wynn Owen KC (2021): The Appeal Committee of CFA granted ad hoc admission to Tim Owen KC to defend Jimmy Lai at his trial on charges contrary to the National Security Law, and rejected the Hong Kong Justice Secretary's leave application to appeal the ruling of the lower courts on this. The Secretary initially challenged the public interest considerations weighed in granting Owen’s admission but later sought to introduce a new argument advocating for a blanket ban on overseas counsel in national security cases, except in undefined exceptional circumstances. The Appeal Committee refused leave, citing the established principle that new arguments cannot be raised on appeal if they compromise fairness or the court's ability to adjudicate. The decision was later controversially overturned by the Standing Committee of the National People's Congress of China, exercising its power under Article 158 of the Basic Law.
• Q v. Commissioner of Registration (2023): In a unanimous decision jointly written by Mr Justice Ribeiro PJ and Mr Justice Fok PJ, the Court held that the government's policy of requiring trans men (female to male transgender persons) to undergo full sex reassignment surgery as a necessary condition for altering gender markers on Hong Kong Identity Cards violated Article 14 of the Bill of Rights and was unconstitutional.^[19][20]
• Sham Tsz Kit v. Secretary for Justice (2023): In a 3–2 decision, the Court ordered the government to establish an alternative framework for the legal recognition of same-sex relationships, with equivalent rights and obligations to marriage, within two years of the ruling. However, the court also unanimously held that same-sex couples do not have a constitutionally guaranteed right to marry.
• C v D (2023): In a landmark decision on arbitration law, Chief Justice Cheung, Ribeiro, Fok and Lam PJJ dismissed the appellant's challenge to an arbitral tribunal’s determination that a pre-condition to arbitrate had been satisfied. This case is the first in any Model Law jurisdiction to address at the final appellate level the extent to which courts can intervene under Article 34(2)(a)(iii) of the Model Law regarding pre-arbitration conditions. The Court adopted a distinction between “jurisdiction” (which courts may review) and “admissibility” (which courts cannot), holding that disputes over pre-arbitration conditions are presumptively issues of admissibility unless clear and unequivocal language indicates otherwise. Gummow NPJ dissented, rejecting the jurisdiction/admissibility distinction and arguing that all challenges should be assessed directly under Article 34(2)(a)(iii).^[21]
• China Life Trustees v China Energy Reserve and Chemicals Group Overseas (2024): the CFA addressed the principles of Quistclose trusts for the first time, in the context of corporate insolvencies and restructurings. The case concerned US$120 million injected into SPV1 by the treasury entity of the China Energy Group to repay bonds owed by SPV2. When the funds were not used for this purpose and the Group defaulted, the CFA had to determine if the funds were held on a Quistclose trust. The Court unanimously found that such a trust existed, holding that the parties intended the funds to be used only for a specific purpose and not at SPV1’s free disposal. Ribeiro PJ clarified that an express restriction or intent to retain beneficial interest was unnecessary, while Gummow NPJ cautioned against rigid labels, emphasizing that the Quistclose trust is not a new type of trust. Cheung CJ further distinguished between the parties’ intentions and the legal consequences.^[22]
• HKSAR v. Chow Hang Tung (2024): The Court unanimously restored Chow Hang Tung's conviction for "incitement to knowingly take part in an unauthorised assembly" for her role in the 2021 June-Fourth vigil. However, the Court was split 3–2 on whether Chow could challenge the legality of the police's ban by way of defence.^[23] Judges Joseph Fok, Roberto Ribeiro, and Anthony Gleeson held that there is a strong presumption in favour of allowing non-constitutional ("collateral") grounds of challenge by way of defence, and it would take very clear words to deprive a defendant of an opportunity to challenge the validity of the prohibition. Constitutional challenges by way of defence would be allowed as long as the constitutionality of the prohibition is an essential element of the offence. However, the prohibition was found to be proportionate, and that section 9(4) of the Public Order Ordinance did not impose a positive duty on the Commissioner of Police to proactively devise and propose conditions to enable the public assembly to take place.^[24]
• HKSAR v. Ng Ngoi-yee Margaret (2024): In a unanimous decision, the Court dismissed the appeals of 7 prominent democratic politicians against their convictions for "knowingly taking part in an unauthorized assembly" during a protest in 2019. In his concurring judgment, Lord Neuberger NPJ agreed with the main judgment's focus on the Hong Kong constitutional framework but noted that the test for proportionality in restricting fundamental rights aligns with the approach adopted by Lord Reed in the UK Supreme Court decision Abortion Services [2022] UKSC 32.^[25]
• Nick Infinger v. The Hong Kong Housing Authority (2024): In a unanimous decision penned by Chief Justice Cheung, the Court found that the Housing Authority (HA)'s policy of excluding same-sex couples from access to public rental housing (PRH) units and the Home Ownership Scheme (HOS) was unconstitutional. Chief Justice Cheung emphasised that the HA’s policies failed the tests of necessity and proportionality, given that they completely excluded same-sex couples from public housing schemes for ordinary families. The HA provided no evidence that this exclusion would significantly impact housing availability for traditional families or their plans. Moreover, it offered no justification for why less restrictive measures, such as prioritising opposite-sex married couples or those with children while still allowing same-sex couples to apply, could not be adopted.^[26]

From its inception in July 1997 until September 2015, the court was located in the Former French Mission Building, in Central.^[27] 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)

• 
  The Court of Final Appeal of Hong Kong was housed in the Former French Mission Building until September 2015
• 
  Entrance of the Former French Mission Building
• 
  The Court of Final Appeal Building from Prince's Building
• 
  Statue of Themis, the goddess of justice, standing on the building of the Court of Final Appeal
• 
  Statues of Althea, the god of truth, and Klementina, the god of mercy
• 
  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
• 
  Hong Kong Court of Final Appeal building at night from Prince's Building
• 
  Plaque beside the entrance of the Court of Final Appeal

It has been suggested that this section be split out into another article titled List of judges of the Hong Kong Court of Final Appeal. (Discuss) (December 2024)

It has been suggested that this section be split out into another article titled List of judges of the Hong Kong Court of Final Appeal. (Discuss) (December 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.^[35]

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.^[36]

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."^[37]

The Central Government of China's power to interpret—in essence overturn—the CFA's rulings has led the CFA to be nicknamed 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.^{[38][39][40][41]} The term "Court of Semi-Final Appeal" was first officially referenced to by then-Secretary for Justice Elsie Leung as far back as 1999.^[42] In practice, however, the power of interpretation has been used sparingly: as noted by Grenville Cross, since the Basic Law came into effect in 1997, the Central Government has issued only five interpretations up to 2022—approximately once every five years and five months—and none have involved criminal matters. Since the enactment of the NSL, there has been only one interpretation.^[43]

• 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^[44]
• 2016: Legislative Council oath-taking controversy

• 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.^[36]

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.^[45] Bokhary himself has said that he believes his tenure was not extended due to his "liberal judgments".^[45]

Overseas non-permanent judges have so far not taken part in full hearings of national security cases brought before the CFA. 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 involving one overseas NPJ. Although Chief Justice Andrew Cheung has clarified that there is "no nationality requirement regarding the judges that are eligible for designation as designated judges" and that foreign judges are allowed to hear national security cases, British non-permanent judges on the CFA have come under increasing pressure to refrain from participating. According to The Times, Cheung’s remarks "will ratchet up pressure on the eight British judges to quit their positions on the court." It is unclear, however, whether overseas NPJs have not participated because they have not been designated for such cases or because they have declined to do so.^[46]

Regarding local judges, as of 2024, two non-permanent justices (Bokhary NPJ and Tang NPJ) have still not sat in on any national security law cases. Again, 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.^[47] 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", whilst emphasising at the same time that "[t]he courts in Hong Kong continue to be internationally respected for their commitment to the rule of law".^[32][48]

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."^[49]

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", but that he "continue[d] to have the fullest confidence in the court and the total independence of its members".^[30][50] Sumption more explicitly stated that Hong Kong was "slowly becoming a totalitarian state".^[51] 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."^[52] 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."^[53]

On the other hand, since the enactment of the National Security Law, Australian judges Patrick Keane and James Allsop have joined the CFA as non-permanent judges (on 6 April 2023 and 24 May 2024 respectively). Lord Neuberger (who first joined on 1 March 2009) renewed his appointment in February 2024, maintaining that he still believed Hong Kong’s judiciary was independent, and its legal profession “thriving and able”.^[54][55] Likewise, Justices William Gummow and Robert French both renewed their appointments in July 2022 and May 2023 respectively.^[56][57]

On 28 November 2022, the CFA – composed of Chief Justice Andrew Cheung, and permanent judges Robert Ribeiro and Joseph Fok – granted ad hoc admission to Tim Owen KC to defend Jimmy Lai at his trial on charges contrary to the National Security Law, and rejected the Hong Kong Justice Secretary's leave application to appeal the ruling of the lower courts on this.

Within hours of the CFA's decision, 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.^[58] 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.^[59][60]

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.^[61]

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."^[62]

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."^[63][64]

Lord Sumption criticised the proposal to sanction Hong Kong judges as "an idea that is crude, counterproductive and unjust", adding that "[m]ost of them are honourable people with all the liberal instincts of the common law".^[65] Grenville Cross also condemned the move, pointing out that the World Justice Project’s Rule of Law Index 2023 ranked Hong Kong 23rd globally, ahead of the United States, which was ranked 26th. He further noted that foreign non-permanent judges — including those who have left the Court, such as Lord Sumption, Baron Collins of Mapesbury, and Beverley McLachlin — have consistently defended the independence and integrity of the local judges of the Court of Final Appeal.^[66][67]

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. 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.^[68]

• 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