re judges, we too have nz judges, along w/ judges from other british common law territories, which counts out america, and no, we do not have mainland chinese judges
law.unimelb.edu.au
THE HONG KONG COURT OF FINAL APPEAL
THE HON SIR ANTHONY MASON AC KBE* CONTENTS
I The Court
II Article 158 and Questions of Interpretation III Case Law
IV The Future
I THE COURT
The Hong Kong Court of Final Appeal (‘CFA’) is, as its very name suggests, the final court of appeal in the Hong Kong Special Administrative Region (‘HKSAR’). The Region is an unalienable part of the People’s Republic of China (‘PRC’).1 The Court was established pursuant to the Basic Law, a constitution for Hong Kong, enacted as a statute of the National People’s Congress (‘NPC’), the ‘highest organ of state power’ in the PRC.2 The Standing Committee of the NPC (‘Standing Committee’) is its permanent body. The Joint Declaration, the agreement between the United Kingdom and the PRC, which sets out the terms of China’s resumption of the exercise of sovereignty over Hong Kong, provided for the handover in 1997 and the enactment of the Basic Law.3
The Basic Law maintains the judicial system which existed when Hong Kong was a British colony except for consequences arising from the establishment of the CFA. The handover terminated the final appeal from Hong Kong courts to the Privy Council. The jurisdiction formerly exercised by the Privy Council is, in a broad sense, now exercised by the CFA. The Court hears and determines appeals from the Court of Appeal (an intermediate appellate court) and the Court of First Instance which exercises both a civil and a criminal jurisdiction. The jurisdiction of the Court of First Instance is broadly similar to that of the Supreme Courts of the Australian States. Appeals lie as of right and by leave. Leave is granted (or refused) by the Court of Appeal or by the Appellate
Committee of the CFA, which consists of three judges of the CFA. Leave is granted if, in the opinion of the Court granting leave, ‘the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision’.4 Article 19 of the Basic Law expressly provides that the courts of the HKSAR have no jurisdiction over acts of state, such as defence and foreign affairs.
The Basic Law vests the power of final adjudication in the CFA (subject to art 158),5 which may invite judges from other common law jurisdictions to sit on the Court.6 The Court consists of four permanent judges (all of whom are permanent residents of Hong Kong), including Chief Justice Andrew Li. The Court sits as a bench of five judges, the fifth judge being drawn from a list of non-permanent Hong Kong judges or, more often, from the panel of foreign judges.7 The panel of foreign judges consists of myself and Sir Daryl Dawson (Australia), Lord Hoffmann, Lord Nicholls of Birkenhead and Lord Millett, (all currently serving Law Lords), Lord Cooke of Thorndon, Sir Edward Somers and Sir Thomas Eichelbaum (New Zealand).
The participation by foreign judges in the work of the CFA has recently been the subject of debate in the media. It has been suggested that foreign judges may not be familiar with conditions in Hong Kong. This suggestion has been countered by the Secretary for Justice, who sees the participation of foreign judges as a benefit for Hong Kong.8
...
...
The Basic Law also contains provisions which protect judicial independence and maintain the basic procedures regulating due process (including trial by jury) previously applied in Hong Kong. The right to a fair trial without delay and the presumption of innocence are expressly guaranteed.11 Judicial appointments are made by the Chief Executive on the recommendation of an independent commission composed of judges, legal practitioners and eminent persons from other sectors.12 A judge may only be removed for the inability to discharge his or her duties, or for misbehaviour. Removal is carried out by the Chief Executive on the recommendation of a tribunal appointed by the Chief Justice and consisting of no fewer than three local judges.13
...
The judicial system in Hong Kong is substantially similar to the judicial system in common law jurisdictions like Australia, New Zealand and Canada. Sitting as a judge in the CFA is no different from sitting as a judge in the High Court of Australia, with the exception that the faces and the accents are different. Court procedures and the style of oral argument would be familiar to an Australian lawyer, although more use is made of written argument than is the case in the High Court of Australia.
Hong Kong counsel, including Senior Counsel, are mainly Chinese, though there are a number of English lawyers practising in Hong Kong. There is also a sprinkling of Australian and New Zealand counsel, of whom the leader would be Gerard McCoy SC, a New Zealander, who has appeared in some of the leading cases. Overseas counsel, who are invariably English, may secure ad hoc admission to appear in a particular case. As a result, I have heard argument presented by leading English counsel in a number of appeals, including taxation, intellectual property and constitutional cases. In some instances their presentation of argument has been very impressive. However, the best counsel in Hong Kong also maintain a very high standard.
...
|
