Information source: Departmental Review - "Department of Justice 2008"

The Civil Division has a major role in providing legal advice on a wide range of legal issues on civil matters to all Government bureaus and departments. The division also represents the Government in the conduct of all civil claims and disputes involving the Government.

The Civil Division comprises four major units:

• Advisory

• Civil litigation

• Commercial

• Planning, Environment, Lands and Housing

Advisory

Counsel of this unit provide advice on demand to various Government bureaus and departments on civil law issues of a general nature, such as:

• civil aviation, shipping and public transport
• civil service and disciplinary proceedings
• education and social welfare
• election related matters
• electronic transactions related matters
• employment
• Hong Kong Police Force
  
• immigration
• protection of personal data
• public finance, inland revenue and customs and excise
• public health and environmental hygiene
• recreation and culture

Matters of particular interest on which the unit advised in 2006 and 2007 included heritage conservation such as the preservation of Queen's Pier, preparation for the District Councils and Legislative Council elections, the establishment of a centralised poultry slaughtering plant, the prohibition of the import of eggs containing Sudan Red dye, the control of food safety, the measures to combat avian influenza, the personalised vehicle registration scheme, the co-location of immigration and customs clearance facilities in Shenzhen, measures to deal with the influx of Mainland women giving birth in Hong Kong, the extension of the smoking ban to all indoor areas/working places, and (following the decision of the Court of Final Appeal in Sakthevel Prabakar in June 2004) advising on claims made under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Civil Litigation

The division represents the Government in the conduct of all civil claims and disputes involving the Government. Counsel in the Civil Litigation Unit act as solicitors and barristers in relation to such litigation, though some work is briefed out to private practitioners as may be required.

As in previous years, public law cases have formed a major part of the division's litigation work. Some of the more important of these are mentioned under "Notable Cases" in the "Highlights of 2006 and 2007" chapter.

During 2007, the division assisted the Commission appointed by the Chief Executive in Council under the Commissions of Inquiry Ordinance (Cap 86) to inquire into certain allegations relating to the Hong Kong Institute of Education, including representing a number of Government witnesses who gave evidence before the Commission. The substantive hearing of the Inquiry began on 29 March 2007 and, after a total of 35 days, concluded on 6 June 2007. The Commission issued a report on its findings and conclusions to the Chief Executive on 20 June 2007.

The division has worked on a number of important death inquests in 2006 and 2007. These included the inquest into the death of two police officers (one of whom was an off-duty police officer and also a suspect) in a shooting incident in a pedestrian subway in Tsim Sha Tsui on 17 March 2006. The hearing lasted from February to April 2007. Another inquest was held in May 2007 into the death of a hawker who drowned in a river in Tin Shui Wai on 26 June 2006. The death inquest into a gas explosion in Wai King Building at Ngau Tau Kok on 11 April 2006 which led to two fatalities and a number of injuries took place in June 2007. In all these inquests, the division acted for the relevant Government departments.

In June 2007, the first case was referred by the Financial Secretary to the newly established Market Misconduct Tribunal (MMT). The accused parties in that case, which concerns alleged market misconduct in relation to Hong Kong listed securities, are seeking a judicial review of preliminary rulings of the MMT in Cheeroll Limited and Sun Hung Kai Investment Services Limited v MMT and Financial Secretary and Chau Chin Hung and Cheung Sau Lin Connie v MMT and Financial Secretary. The points in issue concern the nature of proceedings before the MMT, the applicable standard of proof and the admissibility of compelled evidence. The division is acting for the Financial Secretary in the judicial review proceedings.

Apart from public law litigation, and in addition to the type of cases already referred to, the Civil Litigation Unit handles a wide spectrum of other civil litigation matters on behalf of the Government, including personal injury cases, charities and trusts matters, revenue appeals, telecommunications appeals, and general recovery of Government debts.

Commercial

Work on commercial law is generated by the Government's own commercial requirements, by the Government's regulation of utilities, franchisees and licensees, and by certain commercial services provided to the community. During 2006 and 2007, counsel in the unit advised on such matters as:

• the rewrite of the Companies Ordinance
• reform of banking and securities and futures legislation, including the relationship between regulatory tiers
• regulation of utilities under the Schemes of Control and related legislative proposals
• regulation of the Mandatory Provident Fund Schemes and related legislative proposals
• telecommunications, broadcasting and electronic transactions (including the preparation and implementation of legislative proposals on unsolicited electronic messages and the establishment of the proposed Communications Authority)
• the merger of the KCRC and the MTRCL
• drafting and advising upon agreements and major project work such as the Disney theme park, the West Kowloon Cultural District, the International Exhibition Centre at Chek Lap Kok, the new cruise terminal facilities and the Hong Kong-Zhuhai-Macau Bridge
  
• the establishment of various trust funds and schemes
• documentation, rules and related legal advice on the Capital Investment Entrant Scheme (Immigration)
• public private partnerships and private sector involvement
• project financing of film production
• bank mergers and deposit protection
• Governments procurement of goods and services and preparation of tender documents/contracts
• a number of major computer contracts, including in some cases their termination
• general competition policy in Hong Kong including the proposed introduction of a new competition law and anti-competition initiatives in specific sectors such as in telecommunications, broadcasting, electronic trade manifests and the auto-fuel industry
• school service contracts for Government, aided and direct subsidy schools
• advising on, and negotiating, a number of important contracts, such as that in relation to the ITU Telecoms World 2006
• advising on the regulation of digital television services in conjunction with, and in succession to, analogue television services

In April 2007 the Commercial Unit began publishing a quarterly newsletter, the "CU Review", to be distributed to all Government bureaus and departments.

Planning, Environment, Lands and Housing

Counsel in the advisory team of the Planning, Environment, Lands and Housing Unit advise Government on a wide range of matters relating to town planning, environmental protection and control, lands, regulatory control of building operations and building management, rating and Government rent. Counsel also advise on a significant number of infrastructure projects involving resumption of land, reclamation of the foreshore and sea-bed, railway schemes, town planning and related compensation issues. In addition, counsel advise on legislative proposals relating to environmental protection and control of building works.

In 2006 and 2007, significant planning, environmental and land matters advised on by the team included:

• proposals to amend the Air Pollution Control Ordinance (Cap. 311) to provide for emission caps and emission trading
• major public projects such as the West Island Line, the Express Rail Link, the Wan Chai Development Phase II, the Central Reclamation Phase III and the Tamar Development
• amendments to the Outline Zoning Plans prepared by the Town Planning Board under the Town Planning Ordinance (Cap. 131)
• proposals to amend the Land Registration Ordinance
• amendments to the Building Management Ordinance
• co-location of immigration and customs facilities in Shenzhen
• proposed development at south-east Kowloon, including a new cruise terminal at the former Kai Tak Airport runway
• heritage conservation projects affecting Central Police Station, Star Ferry Pier and Queen's Pier
• the proposed Hong Kong-Zhuhai-Macao Bridge
• land-related commercial agreements and tender documents, such as the Kowloon-Canton Railway Corporation East Rail Extension, airport tunnel, cross-harbour tunnel and Tsing Sha Control area
• proposals for mandatory buildings and windows inspection schemes

In 2006 and 2007, the unit's litigation team handled a wide variety of litigation cases, including:

• town planning appeal cases
• building appeal cases
• Government rent and rating appeal cases
• judicial reviews arising from the above cases
• statutory compensation cases (including land resumption cases)
• land dispute cases
• international child abduction cases
• arbitration

Significant judicial review proceedings in which counsel in the litigation team represented the Government included challenges to the decision of the Commissioner of Rating and Valuation to withdraw holding over orders in respect of payment of Government rent, to the constitutionality of sections 7(2) and 17 of the Limitation Ordinance (Cap. 347), and to the decision of the then Secretary for Home Affairs not to declare Queen's Pier as a monument. Other judicial review proceedings included those relating to Town Planning Board decisions, lease modifications and early lease renewal.

The litigation team was also involved in a number of other high-profile cases, including the writ action taken out by Fairland Overseas Development Company Limited in its dispute over the use by vehicles longer than seven metres of Fairview Park Boulevard. The team also handled various Government rent exemption cases (including the case of Tang Sing Sheng v Director of Lands which was heard and decided by the Court of Appeal in May 2007) and a number of Lands Tribunal referrals on the assessment of compensation of properties resumed for, or adversely affected by, various infrastructure projects.