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Hong Kong Court of Final Appeal

Final appellate court of Hong Kong From Wikipedia, the free encyclopedia

Hong Kong Court of Final Appealmap
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For the building, see Court of Final Appeal Building.

The Hong Kong Court of Final Appeal (HKCFA; in case citations, FA) 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.

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The court meets in the Court of Final Appeal Building located in Central, Hong Kong. Court cases can be viewed online through live broadcast and webcast playback from April 2025 onward under a pilot scheme of 2 years.[2][3]

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Role of the court

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.[4][5]

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).

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Court structure

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Judges

See also: List of judges of the Hong Kong Court of Final Appeal

The Court of Final Appeal is made up of the Chief Justice, at least three Permanent Judges, and at most 30 non-permanent Judges who can come from Hong Kong or any overseas common law jurisdiction. Under the Basic Law, Hong Kong remains a common law jurisdiction; Article 92 of the Basic Law allows judges from other common law jurisdictions to be recruited and serve in the judiciary as non-permanent judges (NPJs). To date, NPJs appointed to the court 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.

Demographics

As of 2025, no woman has ever served as Chief Justice or as a permanent judge. Baroness Hale and Beverly McLachlin, who were both appointed as overseas non-permanent judges on 30 July 2018, were the first women to sit on the court.

Of the 11 chief justices and permanent judges who have been appointed to the court since 1997, 8 obtained their law degree abroad (Chan, Tang and Cheung are HKU graduates), and 8 were previously QCs or SCs. With the exception of Joseph Fok and Roberto Ribeiro, who are Eurasian,[6] and Kemal Bokhary, who is of Pakistani descent, all permanent judges have been of Chinese ethnicity.

Judicial assistants

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

Main article: Registrar (Hong Kong)

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)[7]
  3. Betty Kwan Ka-ching (2000–2002, acting)[8]
  4. Queeny Au-yeung Kwai-yue (2002–2007, acting)[9]
  5. Simon Kwang Cheok-weung (2014–2018; acting from August 2007 to March 2014)[10]
  6. Wong King-wah (since June 2023; acting from September 2018 to May 2023)[11]
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Procedure

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Permitting an appeal

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

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 local non-permanent judges have been designated to sit on NSL cases). As there is no nationality requirement regarding the judges that are eligible for designation as designated judges, it is remains unclear whether overseas NPJs have not participated because they have not been designated for such cases or because they have declined to do so.[12]

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Current court

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The Cheung Court

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. Andrew Cheung has been described as a "conservative", in contrast to his relatively liberal predecessors as Chief Justice.[13][14] 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,[13] with a record number of overseas non-permanent judges stepping down from the court between 2021 and 2024.[15][16] Nevertheless, 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.[17][18][19][20][21] A third non-permanent judge, Sir William Young, is expected to join the CFA pending the endorsement of the Legislative Council of Hong Kong.[22]

Permanent members of the court

  • 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)

Notable rulings of the court

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, the freedom of the press, 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.[23][24]
  • Secretary for Justice v Timothy Wynn Owen KC (2021): This was a leave determination of the Appeal Committee of the CFA, which arose in the context of Jimmy Lai's trial under the National Security Law and his application to be represented by Tim Owen KC, an English barrister, for which court permission is required in Hong Kong. Ruling in favour of Lai, Chief Justice Cheung together with Ribeiro and Fok PJJ granted ad hoc admission to Owen to represent Lai and rejected the Justice Secretary’s application for leave to appeal the lower courts’ rulings. The Secretary had challenged the public interest considerations supporting Owen's admission in the lower courts, but later introduced a new argument before the CFA, advocating for a blanket ban on overseas counsel in national security cases. The CFA rejected this new argument, citing the principle that new issues cannot be raised on appeal if they compromise fairness or the court's ability to adjudicate. However, the CFA 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.[25][26]
  • 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.
  • HKSAR v Choy Yuk Ling (2023): In an important decision on the freedom of the press, the CFA unanimously quashed the conviction of a journalist, Bao Choy. Choy was convicted in 2021 for allegedly making false statements in her applications for vehicle registry records, used to investigate the transport of weapons linked to a controversial attack on pro-democracy protestors during the 2019-2020 Hong Kong protests. Her purpose was recorded as “[o]ther traffic and transport related matters,” which lower courts deemed false, stating her true purpose was investigative journalism. Fok PJ held that while the Commissioner for Transport was entitled to require applicants to state their purpose, the phrase “[o]ther traffic and transport related matters” could reasonably include investigative journalism related to a vehicle’s use in a crime — particularly given constitutional protections for press freedom. The Court also found it was not an irresistible inference that the Appellant knowingly made a false statement, as she could have honestly believed her purpose fit within the stated category, and thus allowed Choy's appeal. The decision was welcomed by the International Federation of Journalists, and described as a "significant ruling for press freedom" by the media.[27][28]
  • 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).[29]
  • 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.[30]
  • 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.[31] 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.[32]
  • 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.[33]
  • 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 units and the Home Ownership Scheme was unconstitutional. The Chief Justice 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.[34] The decision was welcomed by Jerome Yau, co-founder of Hong Kong Marriage Equality, who told the media that “the court made it very clear that same-sex marriage is just the same as heterosexual marriage”. Hong Kong Marriage Equality called on the government to immediately end the exclusion of same-sex couples from marriage.[35]
  • HKSAR v. Tang Ngok Kwan, Tsui Hon Kwong, and Chow Hang-tung (2025): The Court unanimously allowed the appeals of the three appellants, who were the organizers of a candlelit vigil for victims of the 1989 Tiananmen Square protests and massacre, and quashed their convictions for failing to comply with notices issued under Schedule 5, Section 3(3) of the Implementation Rules for Article 43 of the National Security Law (NSL). The case centered on whether the appellants, as office-bearers of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China , were lawfully required to provide information to the police under the NSL. The Court cited the use of documents by the prosecution that were “heavily redacted” as a key plank in its decision, noting that the "redactions were not only self-defeating by removing from evidence the only material relied upon for establishing that the [Alliance] were foreign agents, but also made it impossible for the Appellants to have a fair trial as they were deprived of all knowledge as to the nature of the prosecution’s case on an essential element of the offense".
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Building

From its inception in July 1997 until September 2015, the court was located in the Former French Mission Building, in Central.[36] 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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Image gallery

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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 Themis, 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
  • Thumb
    Plaque beside the entrance of the Court of Final Appeal
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Controversies

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Article 158 interpretation

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.[37]

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."[38]

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.[39][40][41][42] The term "Court of Semi-Final Appeal" was first officially referenced to by then-Secretary for Justice Elsie Leung as far back as 1999.[43]

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.[44] Kemal Bokhary, a former Permanent Judge (and now Non-Permanent Judge) of the CFA known for his liberal opinions, has remarked: "The very fact that there's an interpretation [from Beijing] shows you that the court is independent. Because if the courts are not independent, then they could just be told quietly behind the scenes what to do, and they would do it. But everybody knows that's not how it works in Hong Kong."[45]

Below is a list of Article 158 interpretations to date:

Basic Law interpretations

National security law interpretations

  • 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.[37]

Kemal Bokhary replacement

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.[47] Bokhary himself has said that he believes his tenure was not extended due to his "liberal judgments".[47]

Hong Kong National Security Law

Designated national security law judges (2020)

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. The Times reported that 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.[12]

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.

Resignation of non-permanent judges (since 2020)

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.[48] 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".[49][50]

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."[51]

In 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".[52][53] Sumption more explicitly stated that Hong Kong was "slowly becoming a totalitarian state".[54] 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."[55] 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."[56]

In March 2025, former Australian Chief Justice Robert French resigned as a non-permanent judge, one year before his term was due to expire in May 2026. French stated that the role of foreign judges had "become increasingly anachronistic and arguably cosmetic" amid the evolving legal and political environment following Beijing's national security crackdown. He maintained respect for the Hong Kong judiciary, endorsing their "integrity and independence" and rejecting claims that overseas judges were complicit in applying national security laws or lent them legitimacy. The Hong Kong government expressed regret at his resignation, thanking him for his contributions while asserting that the judicial system's integrity and the rule of law remained intact.[57]

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). When questioned on his decision to join, Keane acknowledged that several NPJs had quit their positions over the past years, but noted that 'given how successful the court has been in its role in upholding the rule of law, one should be very slow indeed to decline the opportunity to serve on such a successful court'. Describing the CFA as having a long history as 'a very successful institution that’s made an important contribution to the success of Hong Kong', he added that '[o]ne has to be very careful about declining to do good work because one has an apprehension that one might be asked to do bad work'.[58] Echoing these remarks, former Chief Justice of Canada Beverley McLachlin stated in 2023 that the '[CFA] is doing a terrific job of helping maintain rights for people, insofar as the law permits it, in Hong Kong. Which is as much as our courts do', and rejected calls for her to resign from the CFA (she eventually retired from the Court in July 2024).[59]

In addition, former UK Supreme Court President 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”.[17][18] Likewise, Justice William Gummow renewed his appointment in July 2022.[20] On 10 January 2025, Lord Hoffmann (who has been a member of the CFA since 1998) extended his term for another three years, just days after delivering a CFA judgment concerning the limitation period for fiduciaries and unauthorized profits.[21][60]

On 8 May 2025, the Hong Kong Government announced that Sir William Young, a former judge of the Supreme Court of New Zealand, would join the CFA as a non-permanent judge after receiving the endorsement of the Legislative Council of Hong Kong.[22]

Overseas counsel for national security defendants (2023)

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.[61] 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.[62][63]

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.[64]

Proposed United States sanctions on Hong Kong judges (2023)

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."[65]

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."[66][67]

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".[68] 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, Lord Collins, and Beverley McLachlin — have consistently defended the independence and integrity of the local judges of the Court of Final Appeal.[69][70]

Maria Yuen nomination saga

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, reportedly 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.[71]

Johannes Chan SC (Hon) said that this was "...a very bad and worrying development for the independence of the judiciary. It provides a channel for political influence in the appointment of key judicial personnel by a [legislature] which is dominated by pro-Beijing politicians."[72] Whilst the blocking of top judicial appointments is commonplace in the United States — there have been 37 unsuccessful nominations to the Supreme Court of the United States to date — it is extremely rare in Hong Kong, where judicial appointments are usually approved by the legislature without contention. It is also rare in the United Kingdom where the Lord Chancellor (formerly both a Cabinet minister and head of the judiciary at the same time) historically had direct influence over judicial appointments, often by informally selecting candidates ('tapping their shoulders') and then recommending them for full-time appointment by the monarch.[73][74]

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