20 February 2019
The functions of the Court of Final Appeal should not be confused with those of a first-tier appeal court.  Photo: HKEJ
The functions of the Court of Final Appeal should not be confused with those of a first-tier appeal court. Photo: HKEJ

Hong Kong’s judicial dowry to the motherland

Do away with Hong Kong’s Court of Final Appeal (CFA) after 2047 and leave it all to the Court of Appeal (CA)?

Henry Litton, an eminent ex-CFA judge who made off-the-cuff remarks earlier this month in favour of the idea, refined his view in a letter published in the South China Morning Post on Dec. 14.

“Whilst conferring final appellate jurisdiction on the Court of Appeal (CA) may appear to promote efficiency and cost-effectiveness, one question would be this: would overseas judges be prepared to sit in such a court?” Litton said.

“Some would argue that if a system works, don’t fix it.”

The Basic Law, which created the CFA, certainly does not envisage such a radical change as abolishing Hong Kong’s final court of appeal.

The argument that the CA would suffice for Hong Kong’s judicial needs ignores the distinctly different functions performed by these two fora.

Whereas it is self-evident that the CA would be bolstered by the intellectual fire power of the CFA judges, there is a danger of conflating two distinct issues.

The function of the CA is to hear appeals on questions of law or fact or both.

Such appeals frequently require a detailed re-examination of the evidence and submissions given at trial.

By contrast, the CFA will only hear an appeal where the appellant can formulate a question of great general or public importance or, additionally in criminal appeals, where there has been a gross miscarriage of justice.

This distills the issue either to a novel point of law or to re-examination of a legal principle in the light of changed circumstances.

Getting leave to go to the CFA is a relatively high hurdle to overcome. The process of refinement sorts out the genuine legal wheat from nebulous chaff.

By definition, the best legal minds gravitate to the CFA, whose decisions bind all lower courts.

Prior to the 1997 handover, the final appeal was to the Privy Council sitting in London.

Composed of the very best judges from England, Scotland, Australia and New Zealand, the Privy Council gives decisions that are a crucible of jurisprudence from common law countries.

Since July 1, 1997, the CFA has shouldered this responsibility for Hong Kong.

The inspired inclusion of one outstanding overseas common law judge on the panel of five CFA judges maintains a vital link with the jurisprudence on which Hong Kong’s legal system is founded.

Even a cursory examination of the CFA’s decisions reveals that its judgments are informed by cases decided at the highest level in all legal jurisdictions and that the court’s intellectual quality is reflected in the high regard in which its decisions are held internationally.

Without diminishing respect for the CA or indeed any appellate court from which there is a final appeal, it is entirely misconceived to confuse the CFA with a first-tier appeal court.

The combination of the focus of the best legal minds on a finely tuned question that has refined the issue down to its essentials is an irreplaceable function if a legal system is to keep pace with the social and legal mores of a society it serves.

Anyone familiar with the workings of the CFA will be aware that in reaching a decision it invariably takes into consideration decisions of superior courts in many other jurisdictions, including the continental or civil as well as the common law.

In so doing, it acts as a crucible for legal development that draws on the wisdom of jurists that has evolved historically.

This is a process of interpretation rather than origination, but the distilled jurisprudence often results in legislative change.

So long as the intellectual integrity of a court of final appeal in the common law world is unimpaired, legal development will be sensitive to the jurisdiction for which it constitutes the ultimate judicial resort.

Abolition of the CFA would deprive Hong Kong of its legal dynamic; it would be the ultimate regression, akin to removing the white matter from the judicial brain.

In this regard, mainland China’s declared policy of reducing political interference in its judiciary suggests that its judges will, over time, become genuine legal professionals whose mindset will eventually chime with their Hong Kong brethren’s.

The CFA is the cornerstone of a judicial system governed by the rule of law and, as stated by our first post-1997 chief justice, Andrew Li Kwok-nang, it should serve this society well beyond 2047.

If the CFA as currently constituted survived the 2047 transition, it would be a judicial dowry of incalculable worth.

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Queen's Counsel

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