PLC Paper No. LS 26
Paper for the
House Committee Meeting
of the Provisional Legislative Council on
12 September 1997
Legal Service Division Report on Hong Kong Court of Final Appeal (Amendment) (No. 3) Bill 1997
Object of the Bill
To prohibit a judge of the Court of Final Appeal from hearing and determining, as a member of its Appeal Committee, any application relating to matters in which he has been previously involved in a lower court.
PLC Brief Reference
2. CSO/ADM 9/4/3222/85(97) Pt. 2 issued by the Administration Wing, Chief Secretary for Administration ' s Office in September 1997.
Date of First Reading
3. 10 September 1997.
4. The Court of Final Appeal Ordinance (Cap. 484) now prohibits a judge of the Court of Final Appeal, when sitting as a member of the Court, from hearing and determining any appeal from a decision in which he has been involved previously in a lower court as well as any application in relation to such an appeal. This serves as a safeguard against any bias of the judge concerned.
5. However, there is no corresponding prohibition when a judge of the Court of Final Appeal is sitting as a member of its Appeal Committee, which has the function of hearing and determining an application for leave to appeal to the Court of Final Appeal.
6. The main purpose of the Bill is to extend the same prohibition to judges sitting in the Appeal Committee. However, since under the principal ordinance, only permanent judges of the Court of Final Appeal may sit on the Appeal Committee, this may result in difficulties in finding enough permanent judges (now numbering 3 only) eligible to sit on the Committee in some cases. To overcome the problem, the Bill further provides that when this occurs, a non-permanent Hong Kong judge may be nominated to fill any such vacancy. This should ensure that an Appeal Committee could be formed whenever it is required.
7. The Bill also makes a technical amendment to clarify that the power of the Appeal Committee should include the power to certify that a point of law of great and general importance is involved in the decision from which leave to appeal to the Court of Final Appeal is sought.
Consultation with Panel
8. The Panel on Administration of Justice and Legal Services was briefed on the Bill at its meeting on 8 September 1997.
9. No public consultation has been carried out.
10. The amendments made by the Bill are essentially technical adjustments to improve the working of the Appeal Committee in dealing with applications for leave to appeal to the Court of Final Appeal.
11. Both the legal and drafting aspects of the Bill are in order. It is recommended that the Bill be supported.
CHEUNG Ping-kam, Arthur
Assistant Legal Adviser
Provisional Legislative Council Secretariat
9 September 1997