Highlights of 2008 and 2009

Initiatives and reforms

Higher rights of audience for solicitors

In June 2009, the Legal Practitioners (Amendment) Bill 2009 was introduced to the Legislative Council.  The Bill is intended to implement recommendations made by the Chief Justice’s Working Party on Solicitors’ Rights of Audience which would extend rights of audience in the higher courts in Hong Kong to suitably qualified solicitors.  Under the proposed scheme, solicitors having at least five years’ post-qualification experience and satisfying further eligibility requirements would be able to apply to an assessment board for higher rights of audience before the High Court and the Court of Final Appeal.  If enacted, the Bill would provide greater choice to the public by expanding the pool of advocates in the higher courts.

The Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between the Mainland and Hong Kong

This arrangement was signed on 14 July 2006 between the Supreme People’s Court of the PRC and the Department of Justice to permit judgments to be enforced summarily in the other jurisdiction on a reciprocal basis.  To implement the arrangement, the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) was passed by Hong Kong’s Legislative Council on 23 April 2008 and, in the Mainland, the Supreme People’s Court promulgated a judicial interpretation on 4 July 2008.  Both instruments came into effect on 1 August 2008.

Parties who wish to enforce a Mainland judgment may now apply to the Hong Kong Court of First Instance (CFI) for registration of the judgment.  The judgment will only be registered if it orders the payment of a sum of money, was given by a “designated court” and the “choice of Mainland court agreement” between the parties was made after 1 August 2008.  The judgment must also be final and conclusive and enforceable in the Mainland.  A registered Mainland judgment has the same force and effect as if it had been given by the CFI.

The Mainland and Hong Kong Closer Economic Partnership Arrangement (CEPA)

CEPA allows Hong Kong lawyers easier access to the Mainland legal services market.  Since CEPA first came into effect on 1 January 2004, there have been a number of Supplementary Agreements, the latest of which was promulgated on 9 May 2009.  These have introduced further measures to make it easier for Hong Kong lawyers to practise as Mainland lawyers and to form associations with Mainland law firms.

From 1 October 2009, Hong Kong legal practitioners with five or more years practising experience and who have passed the National Judicial Examination will no longer have to undergo a one year internship before applying to practise in the Mainland.  Instead, they will only be required to complete a one month intensive training course organised by the Mainland lawyers association.  Hong Kong law firms which have set up representative offices in the Mainland may form associations with law firms in Guangdong province if the Mainland law firm concerned has been established for at least a year and one of the lawyers who established the firm has at least five years of professional experience.

As a result of the easing of restrictions, including the removal of a residency requirement for Hong Kong representatives in the Mainland, the number of representative offices set up by Hong Kong law firms in the Mainland has nearly doubled from 34 before the implementation of CEPA to 65 at the end of 2009. 

Reform of arbitration law in Hong Kong

On 8 July 2009, the Arbitration Bill was introduced to the Legislative Council.  The Bill proposes to reform arbitration law in Hong Kong by creating a single regime for all types of arbitration, based on the Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law.  The existing law has been criticised as complex and difficult to understand and as having failed to keep pace with the needs of the modern arbitration community.  If the Bill is enacted, the law relating to arbitration will become clearer and more certain and accessible to arbitration users. 

The introduction of the Bill is the result of several years of cooperative work involving the department and arbitration practitioners in Hong Kong.  It is hoped that the enactment of the Bill will make a significant contribution to developing Hong Kong as a hub for international arbitration in the Asia Pacific region.

Working Group on Mediation

In February 2008, the Secretary for Justice set up a cross-sector Working Group on Mediation under his chairmanship, reflecting the pledge by the Chief Executive in his 2007 - 2008 Policy Address to develop mediation services in Hong Kong.  The Working Group was tasked to recommend ways to facilitate and encourage the wider use of mediation and to ensure the quality and standard of mediators.  The Working Group includes representatives from the Department of Justice, the Judiciary, the Legal Aid Department, the Bar Association, the Law Society, Hong Kong’s three law schools, the Hong Kong International Arbitration Centre, the Hong Kong Mediation Council and the Hong Kong Mediation Centre, together with other members who are familiar with consumer or community needs.

During the last two years, the Working Group and its three specialist sub-groups have examined issues relating to public education and publicity, the accreditation and training of mediators and the regulatory framework for mediation.  In 2009, the Working Group launched “Mediate First”, a publicity campaign aimed at encouraging businesses to use mediation as the preferred means to resolve disputes and “Community Venues for Mediation”, a pilot scheme using two community centres for community mediation to encourage the wider use of mediation to resolve community disputes.  The Working Group also issued a Hong Kong Mediation Code, intended as a voluntary code of conduct for mediators, incorporating a sample Agreement to Mediate.

The Working Group expects to present its recommendations in a report for public consultation in February 2010.

Prosecution policy

The department’s prosecution policy guidelines were published in a new and expanded Statement of Prosecution Policy and Practice in December 2008.  The purpose of the statement is to promote openness and consistency in the area of public prosecutions. In addition to its obvious function of guiding prosecutors at all levels in the proper discharge of their functions, the statement is intended to make the decision-making process more readily understandable to the public at large.

The Statement on the Treatment of Victims and Witnesses

In September 2009, the Prosecutions Division issued The Statement on the Treatment of Victims and Witnesses.  The statement sets benchmarks for prosecutors and explains to the public how victims and witnesses should be treated throughout the course of criminal proceedings and the standards of service they may expect to receive.  The criminal justice system depends on victims and witnesses to achieve its ends.  The statement is a means to promote public trust in the legal system.  It is in addition to, and supplements, the Victims of Crime Charter.

Conference of the Commonwealth Association of Legislative Counsel 2009

In April 2009, counsel in the Law Drafting Division participated extensively in, and enthusiastically provided support for the running of, the Conference of the Commonwealth Association of Legislative Counsel 2009, held in Hong Kong.  The conference offered a unique opportunity for legislative drafters from jurisdictions sharing the common law tradition to exchange experience.  The theme of the conference was “Whose law is it?”  Heads of legislative drafting offices and senior legislative drafters from all over the common law world presented papers on topics such as the tension between consistency and innovation in drafting legislation, the professional obligations of legislative counsel and the electronic publication of legislation.  A judicial perspective on legislative drafting was given by the Hon Mr Justice Bokhary, Permanent Judge of the Court of Final Appeal.  Dr the Hon Margaret Ng, Member of the Legislative Council, and Mr Jimmy Ma, JP, Legal Adviser to the Legislative Council, spoke on the legislative process. 

A cocktail reception for the participants was hosted by the Secretary for Justice.  The conference was attended by some 150 participants and guests from 24 countries. 

Third Asia Pacific Regional Conference of the Hague Conference on Private International Law 2008

Enhancement of IT capability

A range of initiatives were undertaken during 2008 and 2009 to enhance the department's information technology (IT) capability.  These included:

Notable cases

Criminal

In HKSAR v Cheung Kwun-yin (FACC 11/2008), the question of law raised in the Court of Final Appeal related to the interpretation of “any deception” in section 18D(1) of the Theft Ordinance (Cap 210).  It was held that in interpreting a statute, the court’s task was to ascertain the intention of the legislature as expressed in the language of the statute.  The modern approach was to adopt a purposive interpretation.  The context of a statutory provision should be taken in its widest sense and certainly included the other provisions of the statute and the existing state of the law.  In light of its context and purpose, deception in this section was not restricted to deception which targeted a bank or deposit-taking company.

In HKSAR v Lee King-man (CACC 96/2005), the Court of Appeal dismissed the accused’s appeal against his conviction for wounding with intent.  The accused contended that the evidence of an undercover police officer, who posed as a prisoner in the detention cell where the accused and his confederate were taken after arrest and heard an incriminatory conversation between them, should be excluded.  The court held that as the accused had neither been charged nor questioned, evidence of the conversation between the two suspects was admissible, not least because the officer neither engineered, triggered nor participated in the conversation.

In HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal confirmed the sentencing guidelines applied to trafficking in heroin and cocaine of up to 600 grams and set sentencing guidelines for trafficking in these drugs ranging from 20 to 23 years’ imprisonment for trafficking 600 grams to 1,200 grams to from 26 to 30 years’ imprisonment for 4,000 grams to 15,000 grams.  The presence of any aggravating factors (such as if an international element was involved, or the accused had a previous conviction for trafficking in dangerous drugs, or the accused was shown to be a major player in a syndicate, or a young person had been engaged to assist in trafficking) called for enhancement of the sentence.  The new guidelines did not have retrospective effect.

In SJ v Hii Siew-cheng [2009] 1 HKLRD 1, the Court of Appeal set new sentencing guidelines for trafficking in ketamine and ecstasy.  These drugs were prevalent, targeted at young persons and had serious side effects which impinged not just upon the consumers, but also the community at large.  Modern medical expert evidence showed that both drugs were potentially highly dangerous and addictive in their potential for psychological dependence.  Save in extreme exceptional circumstances, traffickers pushing these drugs in a discotheque or similar premises should receive a custodial sentence.  A non-custodial sentence might be justified when a habitual abuser of these drugs, with no previous convictions for trafficking in a dangerous drug, was caught while supplying a close acquaintance who was also a regular drug consumer.  The new tariffs for sentencing traffickers in these drugs ranged from two to four years’ imprisonment for one gram to 10 grams to 14 years and upwards for over 1,000 grams. The new guidelines did not have retrospective effect.

Both applications for review in SJ v Lam Siu-tong (CAAR 2/2009) and SJ v Wong Ton-fan (CAAR 4/2009) involved sentences of imprisonment and periods of disqualification imposed by the District Court in relation to convictions for dangerous driving causing death when the maximum sentence for the offence was still five years' imprisonment.  The Court of Appeal reiterated the principles in SJ v Poon Wing-kay [2007] 1 HKLRD 660.  Older decisions pre-dating Poon Wing-kay, in particular those dealt with in the Magistrates’ Courts,should be regarded as providing limited assistance to a sentencing court.  If the offence occurred at a pedestrian crossing it would be a serious aggravating feature in sentence.  For Lam Siu-tong, the original sentence of 12 months was not disturbed because of the close proximity of the respondent’s original date of release.  The original sentence of 20 months’ imprisonment in Wong Tong-fan was increased to 32 months.  The period of disqualification from driving in both cases, three years and 2½ years respectively, remained undisturbed.

In Huang Nan-hua (HCCC 11/2009), the accused was charged with the offence of carrying arms and ammunition with intent to commit an arrestable offence.  The prosecution case was that the accused was a Mainlander hired to come to Hong Kong in order to commit a serious crime involving violence to one or more prominent local personalities.  The crime was foiled at an early stage and no injury was suffered by the intended victim.  The accused was convicted by the jury and was sentenced to 16 years’ imprisonment.  In passing sentence, the judge remarked that anyone guilty of conduct that threatened a public figure because of his participation in either politics or his profession committed a grave crime.  When the threat involved a firearm, an accused would face a long sentence of imprisonment.

In HKSAR v Wong Kwan-fuk and another (HCCC 254/2007), two Hong Kong residents were charged with conspiracy to blackmail, criminal damage, theft and assault occasioning actual bodily harm.  The prosecution case was that the accused recruited several Mainlanders to come to Hong Kong to carry out a plan to dig up the grave of the wife of a well-known property tycoon in Hong Kong.  They did so with a view to stealing the human remains in the grave and blackmailing the property tycoon for payment.  Two of the accomplice witnesses, who were then serving sentences in Guangzhou, offered to testify against the accused.  A Letter of Request was issued by the Court of First Instance to the High People’s Court of Guangdong Province (HPCGDP), requesting the latter to assist in examining the witnesses in the Mainland.  Letter of Request proceedings were subsequently conducted in the HPCGDP, with the trial judge appointed to sit as the examiner whereas a judge of the HPCGDP sat as the presiding judge.  This was the first case in which evidence was taken in the Mainland for the purpose of a trial in the Court of First Instance and the first occasion for a High Court Judge of Hong Kong to sit as an examiner in the High People’s Court at the provincial level.  Following a trial, the jury convicted the two accused of theft and criminal damage and they were respectively sentenced to 3½ and 2½ years’ imprisonment.

In Cheung Oi-ping and another (DCCC 610/2008), a recovery agent and a solicitor were convicted of conspiracy to commit maintenance and champerty.  The prosecution case was that as a result of a champertous agreement between the victim and the recovery agent, the victim paid the agent $800,000 in cash as service fees, representing 25% of the compensation recovered from a successful personal injuries claim for injuries suffered by the victim’s son in a traffic accident.  The claim was handled by the solicitor who, in a subsequent application by the victim to be appointed as committee for her son’s estate, told the victim to lie to the court in an affirmation that the money was deposited in her safety box.  The accused were imprisoned for, respectively, 16 months and 15 months.

HKSAR v Ma Hon-yeung and four others (DCCC 229-240/2008) is the first insider dealing offence to be tried at the District Court since “insider dealing” was “criminalised” under the Securities and Futures Ordinance (Cap 571), which came into effect in 2003.  All five defendants were convicted after trial.  D1 was at the material times a significant team member of a bank working on the privatisation of a public-listed company, and was alleged to have tipped off his girlfriend (D2), his brother (D3), his brother’s wife (D4) and his nephew (D5) with price sensitive and non-public news of the privatisation of the public-listed company, the offering price and the date of suspension of the trading of its shares, etc.  On the basis of that price sensitive information, D2 to D5 were alleged to have bought the shares of the company just before the trading of its shares was suspended pending the announcement of the privatisation scheme.  D2 to D5 sold these shares soon after trading assumed and made a substantial profit.  D1 and his girlfriend were respectively sentenced to 26 months’ and 12 months’ imprisonment, while D1’s brother, sister-in-law and nephew were each required to undertake 200 hours of community service.  All the defendants were fined to the extent that the profits they made were disgorged.

In HKSAR v Ocean Technology Limited and five others (ESS 31207-31211, 36868-36873, 36925-36927/2006) six defendants were convicted after trial of 16 offences relating to the illegal use of a radio frequency for broadcasting purposes.  On four occasions in 2006, they had set up equipment and broadcast under the name of “Citizens’ Radio”.  They challenged the constitutionality of the licensing regime under the Telecommunications Ordinance (Cap 106).  The trial magistrate accepted the “unconstitutional” argument and dismissed the charges.  However, that ruling was unanimously rejected by the Court of Appeal and a retrial was ordered.  The defendants’ attempt to appeal to the Court of Final Appeal was dismissed by the Appeal Committee.  At the retrial, the defendants applied for a permanent stay of the case.  The magistrate rejected this application and found the charges proved against each of the defendants.  They were fined $3,000 in respect of each summons and the radio equipment was forfeited.  It was evident from the case results that basic rights such as freedom of expression must be exercised within the bounds of the law.

Civil

Constitutional and administrative law

In Yeung Chung-ming v Commissioner of Police (FACV 22/2007), the appellant challenged the Commissioner of Police’s decision to withhold 7% of his pay under section 17 of the Police Force Ordinance (Cap 232), when he had been interdicted following the laying of criminal charges against him.  The sole ground of the appeal was that the withholding of the appellant’s pay during interdiction breached the constitutional guarantee of the presumption of innocence under Article 87(2) of the Basic Law and Article 11(1) of the Hong Kong Bill of Rights.  The Court of Final Appeal held that the Commissioner’s withholding of less than half an interdicted officer’s pay did not imply an assumption that the officer was guilty of the criminal offence with which he had been charged.  The appeal was dismissed on 25 July 2008.

In FB v Director of Immigration and another (HCAL 51/2007), foreign nationals who lodged claims under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment challenged the two-stage screening process established by the Administration as failing to meet the high standards of fairness in handling such claims as required by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (FACV 16/2003).  On 5 December 2008, the Court of First Instance allowed the application and declared certain aspects of the screening process unlawful for breach of the duty to assess such claims in accordance with the high standards of fairness (including the absence of publicly funded legal assistance to needy claimants, the examining officer not being the decision-maker for the initial screening and the absence of an oral hearing at the petition stage).  The court’s judgment was reflected in the revised scheme which has been implemented upon resumption of screening in December 2009.

In February 2007, the Chief Executive in Council appointed a Commission of Inquiry under the Commissions of Inquiry Ordinance (Cap 86) to ascertain whether any improper pressure had been applied to, and any improper attack had been made on, the Hong Kong Institute of Education’s academic freedom.  The Commission, chaired by a Justice of Appeal, found that the then Permanent Secretary for Education’s direct approach to an academic of the institute to remonstrate with him constituted an improper interference with his academic freedom.  In SJ v Commission of Inquiry, Re Hong Kong Institute of Education (HCAL 108/2007), the Secretary for Education took out a judicial review application to challenge the Commission’s findings.  In recognising that academic freedom is a self-contained right under Articles 34 and 137 of the Basic Law, the Court of First Instance held that the Permanent Secretary’s approach did not violate the institute’s right to academic freedom as she had not made any direct or indirect threats of sanction.  The judicial review was allowed on 13 March 2009.

In Chan Noi-heung and others v Chief Executive in Council (CACV 197/2007 and FAMV 47/2008), one of the applicants appealed against the decision of the Court of First Instance in HCAL 126/2006 (judgment dated 16 May 2007) which upheld the decision of the Chief Executive in Council not to fix minimum rates of wages under the Trade Boards Ordinance (Cap 63).  It was contended that the Chief Executive in Council had failed to carry out the constitutional duty under Article 48(2) of the Basic Law by refusing to consider implementing minimum rates of wages in accordance with the provisions of the Ordinance and by so doing had effectively renounced the Ordinance.  On 8 May 2008, the Court of Appeal held that at no stage had the Chief Executive in Council committed the government to a position by which the Trade Boards Ordinance could be said to have been renounced and the appeal was therefore dismissed.  Leave to appeal to the Court of Final Appeal was refused on 23 March 2009.

In Lam Siu-po v Commissioner of Police (FACV 9/2008), a police constable who had been found guilty of a disciplinary charge brought against him under the 1999 version of the Police General Orders 6-01(8) challenged the constitutionality of regulations 9(11) and 9(12) of the Police (Discipline) Regulations (Cap 232, sub leg A), which restricted his right to legal representation in disciplinary proceedings.  On 26 March 2009, the Court of Final Appeal held that the regulations were inconsistent with Article 10 of the Hong Kong Bill of Rights by excluding the adjudicating officer a discretion to permit the police constable to be legally represented.  The disciplinary orders made against the police constable were also quashed.

In Chan Kin-sum v SJ (HCAL 79/2008), the Court of First Instance held on 8 December 2008 that the general, automatic and indiscriminate restrictions on prisoners’ right to vote and to register as electors under the Legislative Council Ordinance (Cap 542) were inconsistent with the constitutional right to vote under Article 26 of the Basic Law and Article 21 of the Hong Kong Bill of Rights.  As far as remanded persons were concerned, there was no provision in the Ordinance which disqualified them from registering as electors or from voting in Legislative Council elections.  The court took the view that the constitutional right to vote of remanded persons was not affected by any law, and arrangements should be made to enable remanded persons to vote on election day whilst being held in custody.

Insider dealing and market misconduct

In Koon Wing-yee v Insider Dealing Tribunal and Financial Secretary (FACV 19/2007) and Chan Kin-shing Sonny v Insider Dealing Tribunal and Financial Secretary (FACV 20/2007), the Court of Final Appeal held in the appeals by the Financial Secretary that section 23(1)(c) of the now repealed Securities (Insider Dealing) Ordinance, which empowered the Insider Dealing Tribunal to impose penalties, was unconstitutional but that the other findings and orders of the Tribunal were valid.

The Market Misconduct Tribunal commenced operation and conducted four inquiries into allegations of market misconduct in relation to shares in Sunny Global Holdings Ltd, QPL International Holdings Ltd, China Overseas Land and Investment Ltd and Mobicon Group Ltd. The proceedings were brought by the Financial Secretary following advice from the Civil Division.

Competition law

In PCCW-HKT Telephone Ltd v Telecommunications Authority (CACV 300/2008), the Court of Appeal clarified the circumstances in which the Telecommunications (Competition Provisions) Appeal Board might state a case for the opinion of the Court of Appeal.  In i-Cable Webserve Ltd v Telecommunications Authority (CACV 329/2008) the Court of Appeal confirmed that the power of the Telecommunications Authority under section 36C of the Telecommunications Ordinance (Cap 106) to impose financial penalties in respect of contraventions of section 7M of that Ordinance over misleading or deceptive conduct were regulatory or disciplinary in nature, rather than criminal, and that the standard of proof to be applied was the civil standard.

Land

In Rank Profit Industries Limited v Director of Lands (CACV 94/2007), Rank Profit appealed to the Court of Appeal against the Court of First Instance’s judgment refusing its application for judicial review against a decision of the Lands Department concerning a proposed lease modification for a lot owned by Rank Profit in Kowloon Bay.  In Rank Profit Industries Limited v SJ (CACV 125/2007), Rank Profit appealed to the Court of Appeal against the Court of First Instance’s decision to strike out its claims made against the government for the return of premia paid, loss of potential profits and abortive expenses arising from the alleged breach of, or derogation from, the land grant as a result of the rezoning of Rank Profit’s neighbourhood lots in the Kowloon Bay Industrial Area.  Both appeals were dismissed by the Court of Appeal with costs to the government, and the Appeal Committee of the Court of Final Appeal refused to grant Rank Profit leave to appeal further (FAMV 7/2009 & FAMV 8/2009).

Rating and government rent

In The Hong Kong Electric Company Limited v Commissioner of Rating and Valuation (LDRA 358/2004 and LDGA 224/2004), the appellant lodged a rating appeal and a government rent appeal, both in respect of the assessment year of 2004/2005, against the Commissioner of Rating and Valuation’s valuation of its tenement which comprised the land, buildings and structures it occupied and used for the generation, transmission and distribution of electricity.  There are parallel appeals on both rates and government rent in respect of three other assessment years (2005/2006, 2006/2007 and 2007/2008).  Judgment was handed down by the Lands Tribunal on 30 November 2009, upholding the Commissioner's use of the receipts and expenditure method of valuation while agreeing with the appellant that the permitted return under the scheme of control, instead of the weighted average of cost of capital, should be used to determine the hypothetical tenant's share of the divisible balance in the valuation.  The Commissioner's application for leave to appeal against the judgment to the Court of Appeal has been fixed for 25 January 2010.

Ongoing cases

In Dr Chan Hei-ling Helen v Medical Council of Hong Kong (CACV 403/2006), a registered medical practitioner was found guilty of professional misconduct by the Medical Council in that her name, title, photographs and statements appeared in a health product advertisement in a local newspaper.  The Court of Appeal held that the impugned involvement of the legal adviser during the deliberations of the Medical Council raised questions as to whether there had been breaches of natural justice and set aside the order of the Medical Council.  Leave was granted by the Court of Appeal for the Medical Council to appeal to the Court of Final Appeal and the hearing is scheduled to commence on 19 April 2010.

In Fok Chun-wa and another v Hospital Authority and another (HCAL 94/2007), the Court of First Instance upheld the policy of the Hospital Authority to charge non-Hong Kong resident pregnant women higher rates for obstetric services as being constitutional and not discriminatory.  The appeal to the Court of Appeal has been fixed for 2 March 2010.

In Tong Wai-ting v Secretary for Education (HCAL 73/2009), the applicant completed his compulsory 12 years of education in a special school which provided education for students with special educational needs due to intellectual disabilities.  His application to extend his studies in the school for one more year was rejected by the government on the grounds that students with intellectual disabilities who had reached the age of 18 must leave school unless there were special reasons.  The applicant alleged direct discrimination under the Disability Discrimination Ordinance (Cap 487) on the grounds of his disability, claiming that no similar age restriction was apparently imposed on students studying in mainstream aided secondary schools.  His application was dismissed by the Court of First Instance on 24 August 2009.  The hearing of the applicant’s appeal has not yet been fixed.

In SJ v Times Square Limited (formerly known as Zenuna Limited) (HCA 1095/2008), the government commenced a writ action against Times Square Limited claiming damages for its breach of the Deed of Dedication dated 30 July 1992, or alternatively an account of profit regarding its levying of excessive charges on organisers of temporary exhibitions and displays in the dedicated area of Times Square.

Public international law

In C and others v Director of Immigration (HCAL 132/2006), the applicants sought declaratory relief that the HKSAR Government was required under customary international law not to expel a refugee to the frontiers of a territory where he or she would face persecution (known as the principle of "non-refoulment of refugees"), and to determine the status of all refugee claimants by way of screening.  In refusing the application, the Court of First Instance considered that, while the principle of “non-refoulment of refugees” had matured into a rule of customary international law, the principle had not been incorporated into the domestic law of the HKSAR.  As such, the HKSAR Government was not required pursuant to that principle to conduct a screening of all refugee claimants.  The applicants have lodged an appeal to the Court of Appeal, which was part-heard on 12 October 2009 and adjourned to early January 2010 for further hearing.

In FG Hemisphere Associates LLC v Democratic Republic of the Congo and others (HCMP 928/2008), the plaintiff applied for leave to enforce in the HKSAR two international arbitral awards against the Democratic Republic of the Congo.  The Secretary for Justice intervened in the proceedings on the grounds of public interest.  The Court of First Instance held that the court had no jurisdiction over the Democratic Republic of the Congo in the proceedings as it enjoyed sovereign immunity.  The plaintiff lodged an appeal to the Court of Appeal (CACV 373/2008 and 43/2009), which was heard between 28 July and 4 August 2009 and judgment has yet to be given.

People

Mr Robert SK Lee, Deputy Principal Government Counsel, was appointed Senior Counsel in April 2008.

Four members of the department were awarded the Bronze Bauhinia Star: Mr John Reading, SC, Principal Government Counsel, and Ms Alison Cabrelli, Principal Government Counsel, in July 2008, and Ms Nilimini Dissanayake, Principal Government Counsel, and Mr Charles Barr, Principal Government Counsel, in July 2009.

Mr Ian McWalters, SC, was appointed Director of Public Prosecutions in October 2009 in succession to Mr Grenville Cross, SC, who retired from that post after 31 years of dedicated service in the government.

Information source: Departmental Review - "Department of Justice 2010"

The Department's Links with other Jurisdictions

Hong Kong’s legal system has the same roots and applies many of the same principles as other common law systems around the world.  Just as lawyers in Hong Kong refer to case law from jurisdictions from Singapore to South Africa, so decisions of Hong Kong’s courts can assist lawyers researching overseas.

Since 1997, Hong Kong’s status as a Special Administrative Region of the PRC has meant that, in addition to continuing to foster strong links with the common law world, mutual understanding with the Mainland of our two legal systems is also important. 

Visits

The Secretary for Justice and the Law Officers regularly meet visitors from the Mainland and overseas, both lawyers and non-lawyers.  The Secretary for Justice personally met 21 visitors or delegations from overseas and 17 from the Mainland during 2008 and 2009.  These visitors included senior judges from the Supreme People’s Court of the PRC and the Higher People’s Court of Guangdong and from Australia, Canada and the USA.  The Secretary for Justice also received visits from the Ministers of Justice from Germany and Indonesia, the Advocate General for Scotland, public prosecutors from the Mainland, and counterparts from the Department of Treaties and Law of the Ministry of Foreign Affairs of the PRC and various  and Departments of Justice from the Mainland.  Other visitors received by the Secretary for Justice included the Secretary-General of the United Nations Conference on Trade and Development, the Secretary-General of the Hague Conference on Private International Law and the heads of a number of arbitration bodies.

The Law Officers personally met a wide range of visitors to the department during 2008 and 2009.  These included a delegation of judges from the Supreme Court of Nepal, a delegation from the HK and Macau Affairs Office of the Guangdong Provincial People’s Government, the Deputy Premier of Victoria, the President of the German Federal Criminal Police, the General Counsel of the US Department of Commerce and the Head of International Family Justice for England and Wales.

Members of the department also gave briefings on Hong Kong’s legal system to many distinguished visitors from the Mainland and overseas, including lawyers, legislators, journalists and consular officials.

Conferences and seminars in the Mainland and overseas

The Secretary for Justice and the Law Officers also regularly attend conferences and seminars in the Mainland or overseas to keep abreast of legal developments and law reform in other jurisdictions and to learn from the experience of others.

In August 2009, the Secretary for Justice attended the 8th Chinese Lawyers’ Forum in Chengdu.  In November 2009, the Secretary for Justice attended the 6th ASEAN-China Prosecutors’ General Conference in Hanoi.

In 2008 and 2009, the Director of Public Prosecutions attended a number of international conferences, including the 13th and 14th Annual Conference of the International Association of Prosecutors in Singapore and Kiev, the 6th Middle East and Asia-Pacific Regional Conference of the International Association of Prosecutors in Dubai, the Singapore Academy of Law Forensics Conference in Singapore and the 5th and 6th China-ASEAN Prosecutors General Conferences in Manila and Hanoi.  The Law Draftsman attended the 5th Australasian Drafting Conference in Brisbane and a conference in Mexico co-sponsored by Clarity, an international organisation promoting plain legal language.

Day-to-day links with other jurisdictions

While the majority of lawyers in the department have completed their legal qualifications in Hong Kong, some have qualified in overseas jurisdictions, including Australia, Canada, England and New Zealand.  In addition to this in-house experience of other jurisdictions, every counsel has online access to the wealth of legal resources from around the world available via the internet.  The department receives on a regular reciprocal basis reports and papers from law reform agencies and other legal bodies around the world.  The department also makes use of the Commonwealth Legal Advisory Service when researching aspects of comparative law, in addition to the regular contacts which members of the department maintain with their counterparts overseas.

Information source: Departmental Review - "Department of Justice 2010"