Kara Sears
The Hong Kong Special Administrative Region's Basic Law is its constitution. The Court of Final Appeal (CFA) is Hong Kong's highest court, and it was established on July 1, 1997. The Legislative Council of the Hong Kong Special Administrative Region has the authority to enact, amend, or repeal laws in accordance with the Basic Law and legal procedures. The Basic Law grants the courts of Hong Kong at all levels the authority to exercise the Region's judicial power. While the courts have the authority to interpret the Basic Law, the final power of interpretation lies with the Standing Committee of the National People's Congress (NPCSC) according to Article 158 of the Constitution of the People's Republic of China.
| Characteristics | Values |
|---|---|
| Hong Kong's highest court | Court of Final Appeal (CFA) |
| Powers of the Court of Final Appeal | Interpreting the Basic Law, the final power of interpretation lies with the NPCSC |
| Striking down laws | |
| Preserving its judicial independence | |
| Protecting fundamental rights by common law | |
| Exercising the judicial power of the Hong Kong Special Administrative Region | |
| Vetting the appointment and removal of judges |
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What You'll Learn
- The Court of Final Appeal is the final appellate court in Hong Kong
- The Basic Law is Hong Kong's constitutional document
- The Legislative Council of Hong Kong can enact, amend or repeal laws
- The Hong Kong Judiciary website contains significant legal precedents
- The Court of Final Appeal preserved its independence in the Jimmy Lai case
The Court of Final Appeal is the final appellate court in Hong Kong
The Court of Final Appeal (CFA) is the final appellate court in Hong Kong. It was established on July 1, 1997, when the United Kingdom handed Hong Kong over to the People's Republic of China. The CFA is the highest judicial institution under Hong Kong law, and it exercises the power of final adjudication with respect to the law of Hong Kong. It also has the power of final interpretation over local laws, including the ability to strike down local ordinances that are inconsistent with the Basic Law.
The CFA is located in Central, Hong Kong, and is made up of the Chief Justice, three permanent judges, and either one non-permanent Hong Kong judge or a judge from another common law jurisdiction. The court hears appeals on civil and criminal matters from the High Court, which consists of the Court of Appeal and the Court of First Instance. For civil appeals, leave to appeal must be granted by either the Court of Appeal or the Court of Final Appeal, and for criminal appeals, leave must be granted by the Court of Final Appeal. The CFA has the power to confirm, reverse, or vary the decision of the lower court, or to remit the matter with its opinion to that court.
The CFA has been the subject of concerns regarding the rule of law in Hong Kong and the independence of the judiciary. Between 2021 and 2024, a record number of overseas non-permanent judges stepped down from the court, while two overseas non-permanent judges, Patrick Keane and James Allsop, joined during this period.
The CFA has handled several notable cases, including the 2021 conviction of Choy for allegedly making false statements in her applications for vehicle registry records. The Court allowed Choy's appeal, finding that the phrase "other traffic and transport-related matters" could reasonably include investigative journalism related to a vehicle's use in a crime.
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The Basic Law is Hong Kong's constitutional document
The Basic Law is composed of nine chapters, 160 articles, and three annexes. It lays out the basic policies of China on Hong Kong and prescribes the various systems to be practised in the Hong Kong Special Administrative Region (HKSAR). It also sets out the blueprint for the HKSAR's future development, safeguarding the prosperity and stability of Hong Kong and protecting the rights and freedoms of Hong Kong residents.
The Legislative Council of the Hong Kong Special Administrative Region exercises the following powers and functions: enacting, amending, or repealing laws in accordance with the provisions of the Basic Law and legal procedures; examining and approving budgets introduced by the government; endorsing the appointment and removal of judges of the Court of Final Appeal and the Chief Judge of the High Court; and receiving and handling complaints from Hong Kong residents.
The Basic Law is a flexible constitution, as demonstrated by the Court of First Instance's ruling in 2018 that the arrangement of having mainland Chinese laws in Hong Kong for customs, immigration, and quarantine purposes does not contravene the "one country, two systems" principle. This ruling interpreted the Basic Law to meet the needs of economic integration.
The National People's Congress Standing Committee (NPCSC) has the power of final interpretation of the Basic Law, as provided by Article 158(1) of the Basic Law and Article 67(4) of the Constitution of the People's Republic of China.
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The Legislative Council of Hong Kong can enact, amend or repeal laws
The Legislative Council of Hong Kong, also known as LegCo, is the unicameral legislature of Hong Kong. It operates under China's "one country, two systems" constitutional arrangement and is the power centre of Hong Kong's hybrid representative democracy.
The Legislative Council has the power to enact, amend or repeal laws in accordance with the provisions of the Basic Law and legal procedures. This includes passing new laws and amending or repealing existing laws, such as principal ordinances and subsidiary legislation. The process involves scrutinising a legislative proposal, which can be a bill or an item of subsidiary legislation, and taking it through various stages of deliberations and decisions in the Council and in committee before it is passed into law.
The Legislative Council also has the power to examine and approve budgets, taxation and public expenditure, as well as raise questions on the work of the government. It can endorse the appointment and removal of judges of the Hong Kong Court of Final Appeal and the Chief Judge of the High Court. Additionally, the Legislative Council has the authority to impeach the Chief Executive of Hong Kong.
The President of the Legislative Council must meet specific eligibility requirements set out in the Basic Law. They must be a Chinese citizen, a permanent resident of Hong Kong SAR with no right of abode in any foreign country, and have ordinarily resided in Hong Kong for a continuous period of at least 20 years. The President is elected by and from among the Council members.
The passage of motions, bills, or amendments introduced by individual members or the government requires a majority vote, with some exceptions. For example, motions on amendments to the Basic Law require a two-thirds vote in the Legislative Council. After a bill is passed by the Legislative Council, it must be signed and promulgated by the Chief Executive to take effect.
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The Hong Kong Judiciary website contains significant legal precedents
The website provides access to a range of resources, including the Judiciary Annual Report, a list of law firms registered for an organization account under the integrated Court Case Management System, and information on the acceptance of payments of court and tribunal fees by Octopus. It also includes invitations for the provision of interpreting and translating services in various languages and the provision of security and motorboat services for the judiciary.
Furthermore, the website outlines the Hong Kong governance structure, which includes executive, legislative, and judicial branches. The Basic Law, Hong Kong's mini-constitution, provides for the continued operation of the common law and capitalist economy within Hong Kong through the "one country, two systems" principle. While the Legislative Council currently has a mix of members elected by constituencies, universal suffrage, and the Election Committee, its ultimate aim, according to the Basic Law, is universal suffrage.
The website also provides insights into the Hong Kong Judiciary's utilization of judicial precedents. For example, Hong Kong's law primarily derives from statutes found in the Laws of Hong Kong in the form of Ordinances. Additionally, Chinese customary law and rights are recognized in specific circumstances, as outlined in the New Territories Ordinance, Chapter 97. This permits courts to apply relevant aspects of Chinese customary law in land inheritance matters.
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The Court of Final Appeal preserved its independence in the Jimmy Lai case
The Court of Final Appeal in Hong Kong has demonstrated a strong approach to constitutional reviews in human rights cases since its establishment in 1997. It has struck down laws and executive acts found to be in violation of protected fundamental rights and freedoms.
In the case of HKSAR v. Lai Chee Ying (2021), the Court of Final Appeal ruled that it had no jurisdiction to constitutionally review the controversial National Security Law (NSL), which created new national security offences in Hong Kong punishable by up to life imprisonment. The Court applied Ng Ka Ling v. Director of Immigration (No 2) and asserted that there is no jurisdiction in the courts of Hong Kong to review the legislative acts of the National People's Congress (NPC) and its Standing Committee (NPCSC) done in accordance with the Basic Law.
Despite this, the Court of Final Appeal preserved its independence in the Jimmy Lai case by keeping the extent of the exception to a minimum and demonstrating its independence in rejecting several of the government's arguments that would have had a restrictive effect on a defendant's ability to obtain bail. The Court's approach was a wise strategic decision in the current political environment, as it preserved the Court's judicial independence, enabled the continued protection of fundamental rights by common law principles, and fended off the risk of executive backlash.
The case concerns Jimmy Lai, a well-known media tycoon and supporter of pro-democracy causes in Hong Kong, who has been charged with fraud and a separate offence of collusion under the NSL. Initially, Hong Kong's High Court upheld a ruling to allow him to be represented by a counsel of his choice, British human rights lawyer Timothy Owens KC. However, on the same day that Lai's trial was postponed awaiting intervention from Beijing, Hong Kong immigration authorities arbitrarily revoked his British lawyer's application for an extension of his work visa, leaving Lai without a lead counsel.
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Frequently asked questions
The Basic Law is the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China. It was adopted by the National People's Congress (NPC) on April 4, 1990, and came into effect on July 1, 1997.
The Court of Final Appeal (CFA) is the final appellate court within Hong Kong. It was established on July 1, 1997, replacing the Judicial Committee of the Privy Council.
While the courts of Hong Kong may interpret the Basic Law, the final power of interpretation lies with the Standing Committee of the National People's Congress (NPCSC) according to Article 158 of the Constitution. In practice, this means that the Court of Final Appeal must refer questions of interpretation to the NPCSC.
Yes, in November 2019, the High Court struck down an anti-mask law made under emergency legislation.
