Information
based on the Departmental publication "Legal System in Hong Kong" printed
in 2008 Preface The first edition of
this booklet was published in 1991. Its stated aim was to help the public understand
how our legal system works. It stressed the importance of the rule of law to Hong
Kong's past success and future promise and emphasised the role that an informed
public could play in ensuring the continued vitality of the legal system. 2007
marked the tenth anniversary of the establishment of the Hong Kong Special Administrative
Region and the constitutional framework of Hong Kong's legal system has changed
significantly since that first edition. But under the Basic Law of the Region,
the laws previously in force have been maintained and adherence to the rule of
law, buttressed by an independent judiciary, has remained a constant. With the
establishment of the Court of Final Appeal in 1997 the power of final adjudication
is now exercised in Hong Kong and the Basic Law provides constitutional protection
for the rights and freedoms of Hong Kong's residents. I hope this latest
edition of this guide, like its predecessors, will help explain our legal system
and promote an understanding of its importance to us all. Wong Yan
Lung, SC
Secretary for Justice
The
rule of Law Information based on the Departmental
publication "Legal System in Hong Kong" printed in 2008 The
"rule of law" refers to some of the fundamental principles of law that
govern the way in which power is exercised in Hong Kong. The rule of law has several
different meanings and corollaries. Its principal meaning is that the power of
the government and all of its servants shall be derived from law as expressed
in legislation and the judicial decisions made by independent courts. At the heart
of Hong Kong's system of government lies the principle that no one, including
the Chief Executive, can do an act which would otherwise constitute a legal wrong
or affect a person's liberty unless he can point to a legal justification for
that action. If he cannot do so, the affected person can resort to a court which
may rule that the act is invalid and of no legal effect. Compensation may be ordered
in the affected person's favour. This aspect of the rule of law is referred to
as the principle of legality. One corollary of the principle of legality
can be summarised as equality before the law. It is fundamental that all persons,
regardless of race, rank, politics or religion, are subject to the laws of the
land. Further, the rule of law requires that the courts are independent of the
executive. This independence is crucial if impartial rulings are to be given when
the legality of acts of government falls to be decided. Legality and equality
before the law are two fundamental facets of the rule of law. But the principle
demands something more, otherwise it would be satisfied by giving the government
unrestricted discretionary powers. A further meaning of the rule of law, therefore,
is to be found in a system of rules which restrict discretionary power. To this
end the courts have developed a set of guidelines aimed at ensuring that statutory
powers are not used in ways which the legislature did not intend. These guidelines
relate to both the substance and the procedures relating to the exercise of executive
power. An example of the former is where a court concludes that a decision which
purports to be authorised by a statutory power is plainly unreasonable and cannot
have been envisaged by the legislature. An example of the latter is where a decision
has been made without according the party affected the opportunity of being heard
in circumstances where the legislature must have envisaged that such an opportunity
would have been given. In both cases a court would hold that the decisions were
legally invalid. The Basic
Law ensures that the legal system in the HKSAR will continue to give effect
to the rule of law, by providing that the laws previously in force in Hong Kong
(that is, the common law, rules of equity, ordinances, subordinate legislation
and customary law) shall be maintained, save for any that contravene the Basic
Law, and subject to subsequent amendment by the HKSAR legislature.
Sources
of law in Hong Kong Information based on
the Departmental publication "Legal System in Hong Kong" printed in
2008 National Law Several national laws of the People's
Republic of China apply in Hong Kong by virtue of Article 18 of the Basic Law.
Under Article 158 of the Basic Law, an interpretation of a provision of the Basic
Law by the Standing Committee of the National People's Congress is to be followed
by the courts of Hong Kong in applying the relevant provision. The Basic
Law Nature of the Basic Law TheBasic
Law of the HKSAR was enacted by the National People's Congress in accordance
with the Constitution of the People's Republic of China. It is akin to a mini-constitution
for the HKSAR. It was promulgated on 4 April 1990 and took effect on 1 July 1997
on the establishment of the HKSAR. All the systems and policies practised in the
HKSAR must be based on the provisions of the Basic Law. These include the social
and economic systems; the system for safeguarding the fundamental rights and freedoms
of its residents; the executive, legislative and judicial systems; and the relevant
policies. Furthermore, no law enacted by the legislature of the HKSAR may contravene
the Basic Law. The most prominent feature of the Basic Law is the underlying
principle of "one country, two systems" whereby the socialist system
and policies shall not be practised in the HKSAR, and the previous capitalist
system and way of life is to remain unchanged for 50 years. Under the Basic
Law, all the laws previously in force in Hong Kong (that is, the common law, rules
of equity, ordinances, subordinate legislation and customary law) shall be maintained,
except for any that contravene the Basic Law and subject to any amendment by the
HKSAR legislature. National laws of the People's Republic of China shall not be
applied in the HKSAR except for a number of such laws relating to defence and
foreign affairs which are listed in Annex III to the Basic Law. Relationship
between the Central Authorities and the HKSAR The National People's
Congress through the Basic Law authorises the HKSAR to exercise a high degree
of autonomy directly under the Central People's Government. The HKSAR enjoys executive,
legislative and independent judicial power, including that of final adjudication,
in accordance with provisions of the Basic Law. Although foreign affairs relating
to the HKSAR are the responsibility of the Central People's Government, the HKSAR
is authorised to conduct relevant external affairs on its own in accordance with
the Basic Law. The Central People's Government is also responsible for the defence
of the HKSAR, but the responsibility of maintaining public order in the HKSAR
is a matter for its government. Fundamental rights
protected by the Basic Law The Basic Law details the fundamental
rights, freedoms and duties of the residents of the HKSAR. These rights include
the right to equality before the law; freedom of speech, of the press and of publication;
freedom of association, of assembly, of procession and of demonstration; and the
right and freedom to form and join trade unions, and to strike; freedom of movement;
freedom of conscience; and freedom of religious belief. The Basic Law also guarantees
that the provisions of the International Covenant on Civil and Political Rights;
of the International Covenant on Economic, Social and Cultural Rights; and of
the International Labour Conventions as applied to Hong Kong will remain in force. The
political structure of the HKSAR TheChief
Executive is the head of the HKSAR and is accountable to the Central People's
Government and the HKSAR. He is assisted in policy making by theExecutive
Council of the HKSAR. The Chief Executive presides over the Executive Council
and appoints its members. The main powers and functions of the Government
of the HKSAR (which is headed by the Chief Executive) include the formulation
and implementation of policies, the conduct of administrative affairs and the
drawing up and introduction of budgets and legislation. The HKSAR's legislature
is theLegislative
Council, and the Basic Law prescribes the specific method for forming the
Legislative Council and its procedures for voting on bills and motions. Under
the Basic Law the Legislative Council's functions include the making of laws,
approving budgets and public expenditure and monitoring the work of the government
in general. The common law and the rules of equity Common law
and the rules of equity are to be found primarily in the judgments of the superior
courts in Hong Kong and other common law jurisdictions. In historical terms, reports
of judgments handed down by judges have, since at least the 15th century, established
in detail the legal principles regulating the relationship between state and citizen,
and between citizen and citizen. There are now some hundreds of thousands of reported
cases in common law jurisdictions which comprise the common law. The rights relating
to freedom of speech, freedom of assembly, and freedom from arbitrary arrest or
imprisonment have been spelt out in cases which were decided more than three centuries
ago. As we have seen, these have now been underpinned by provisions in the Basic
Law. The common law's most distinguishing hallmark is reliance on a system
of case precedent, not restricted to judicial decisions generated within any single
jurisdiction, but case law from all jurisdictions throughout the common law world.
Article 84 of the Basic Law provides that the courts of the HKSAR may refer to
the precedents of other common law jurisdictions. In addition, the Court of Final
Appeal and theJudiciary
of the HKSAR is given power to invite judges from other common law jurisdictions
to participate in the judicial processes. Statute law enacted in Hong
Kong The vast majority of statute law in force in Hong Kong is made
locally and contained in the Laws of Hong Kong. A great deal of legislation is
made under delegated powers. This is called subsidiary legislation. For example,
an ordinance may delegate to the Chief Executive in Council (the Chief Executive
with the advice of the Executive Council) the power to make regulations to deal
with the details of the implementation of a legislative scheme. Chinese
customary law Some aspects of Chinese customary law apply in Hong Kong.
For example, under section 13 of the New Territories Ordinance (Cap 97) the courts
may recognise and enforce Chinese customs or customary rights in relation to land
in the New Territories; and Chinese law and custom is recognised in the Legitimacy
Ordinance (Cap 184). International law Over 200 international
treaties and agreements have been applied to Hong Kong. A treaty does not constitute
part of Hong Kong's domestic law until given effect by legislation. Nonetheless,
it may affect the development of the common law. It may, for example, be resorted
to by a court as an aid to interpretation. The rapidly developing rules of customary
international law can also become absorbed into the common law.
The
criminal law Information based on the Departmental
publication "Legal System in Hong Kong" printed in 2008 Criminal
prosecutions The Secretary for
Justice has overall responsibility for the conduct of prosecutions in Hong
Kong. It is for the Secretary and those who prosecute on the Secretary's behalf
to decide whether or not a prosecution should be instituted in any particular
case or class of cases. In prosecutions for serious or complicated offences,
or those which give rise to difficult points of law, police officers and other
law enforcement agents will seek the advice of the Secretary for Justice or of
counsel in the Prosecutions Division of
the Department of Justice. In determining whether or not to prosecute, the
Secretary for Justice considers two issues: first, is the evidence sufficient
to justify the institution of proceedings? Second, if it is, does the public interest
require a prosecution to take place? In making that decision the Secretary for
Justice is not subject to any instructions or directions from the executive. In
practice, many prosecutions at the summary level involve simple cases which are
processed by the Police or other investigative bodies and do not require the specific
involvement of the Secretary for Justice. At the same time, all such cases are
scrutinised at the Magistrates' Courts by Senior Court Prosecutors acting on behalf
of the Secretary. The jury system The most serious criminal
offences, such as murder, manslaughter, rape, armed robbery and certain drug offences,
are tried by a judge of the Court of First Instance, sitting with a jury of seven
people or, where a judge so orders, nine. It is the jury which decides whether
the accused is guilty or not guilty. A judge will urge a jury to strive for unanimity
in reaching their verdict, but a jury may return a majority verdict of five to
two or seven to two. The purpose of a death inquest is to establish the
identity of a deceased person and the cause of and circumstances connected with
the death. In certain defined cases, an inquest must be held with a jury. In these
cases, and in any other case in which the Coroner decides to hold an inquest with
a jury, a jury of five is appointed. TheBasic
Law expressly provides that the principle of trial by jury is maintained. Principles
of defence A number of principles of defence, which are in accordance
with Article 14 of the International Covenant on Civil and Political Rights (which
has been applied to Hong Kong by the Hong Kong Bill of Rights Ordinance (Cap 383)),
have been incorporated in the Criminal Procedure Ordinance (Cap 221), Legal Aid
in Criminal Cases Rules (Cap 221D), or absorbed into the common law. The Basic
Law guarantees the preservation of these rights, which are: - equality
before the courts;
- the right to a fair and public trial by a competent,
independent and impartial tribunal established by law;
- the right to trial
by jury in the most serious cases;
- the presumption of innocence;
-
the burden of proof lies on the prosecution;
- the standard of proof is
one of beyond reasonable doubt;
- the right to prompt and detailed information
as to the nature and cause of the charge;
- adequate time for preparation
of the defence case;
- the right to legal representation;
- the
right to be tried without undue delay;
- the right to legal assistance;
-
the right to be tried in one's presence;
- the right to call witnesses
and secure their presence in court;
- the right to cross-examine prosecution
witnesses;
- the right to have the free service of an interpreter;
-
the right to remain silent in court;
- the right to appeal against conviction
and/or sentence;
- the right not to be tried or punished for an offence
for which one has previously been convicted or acquitted; and
- the right
to bail pending trial or appeal (subject, however, to the gravity of the offence
charged and all the surrounding circumstances).
The
civil law Information based on the Departmental
publication "Legal System in Hong Kong" printed in 2008 The
main difference between criminal and civil proceedings is that the former are
instituted in the name of the HKSAR to suppress crime and to punish criminals,
while the latter are taken to protect and to recover property and to enforce obligations. While
civil proceedings are often taken by the government against individuals, including
corporations, and vice versa, such proceedings are more commonly instituted by
individuals against other individuals. The burden of proof is easier to
discharge in a civil case than in a criminal case, the standard of proof being
one based on the balance of probabilities. The principal branches of the
civil law include contract, tort, property, administrative, family and revenue
law. The law of contract is concerned with the many different types of agreements
into which persons, including corporations, enter in going about their daily business.
As one of the world's major financial and commercial centres, Hong Kong sees an
immense number of corporate and financial agreements entered into each year. One
important function of a lawyer is to ensure that such contracts are drafted clearly
in an endeavour to prevent disputes arising. The law of tort is concerned
with claims arising out of breaches of a duty of care owed by one individual to
another. The law of property governs the ownership of, and rights in, property
including land and buildings and intellectual property such as trademarks, patents
and copyright. Administrative law is designed to protect the individual
against an abuse of power by the government or public bodies. Family law
deals with, amongst other things, divorce and disputes over the custody of children,
maintenance of spouse and children, and the division of property. Revenue
law is relevant to the assessment and recovery of taxes and duties.
The
language of the law Information based on
the Departmental publication "Legal System in Hong Kong" printed in
2008 Article 9 of theBasic
Law provides that "In addition to the Chinese Language, English may also
be used as an official language by the executive authorities, legislature and
judiciary of the Hong Kong Special Administrative Region". Both Chinese and
English therefore have a part to play in the language of the law. Having
regard to this, and the HKSAR's position as a major international trading and
financial centre, a Committee on Bilingual Legal System was established in April
1998 to advise the government on a range of issues, including the policy and long-term
goal of bilingualism in law and how that goal should be attained. The
common law The principles of the common law are to be found in the judgments
of the courts, both in Hong Kong and in other common law jurisdictions around
the world. The language in which those judgments have been delivered over the
years is almost exclusively English. There are hundreds of thousands of reported
cases which form the basis of the common law, and it would obviously be impractical
to attempt to translate these into Chinese. While in future there is likely to
be an increasing number of judgments in Hong Kong delivered in Chinese, English
will continue to be the only medium in which the majority of judgments from overseas
is reported. Statute law In keeping with the Basic Law's provisions
on bilingualism, all legislation in Hong Kong is enacted in both Chinese and English,
and both versions are accorded equal status. Thanks to the bilingual legislation
programme begun in 1989, authentic Chinese texts have been completed of all pre-existing
legislation which had been enacted in the English language only, and Hong Kong's
statute book is now entirely bilingual. Amendments made to the Interpretation
and General Clauses Ordinance (Cap 1) facilitate the legal interpretation of bilingual
legislation by providing a number of guidelines. The most significant of these
is in section 10B which provides that both texts of a bilingual ordinance are
equally authentic and are presumed to have the same legal meaning. Where the two
texts disclose a difference of meaning, the meaning which best reconciles the
texts, having regard to the object and purposes of the Ordinance, shall be adopted.
This approach is closely in line with Articles 31 and 33 of the Vienna Convention
on the Law of Treaties. The courts In July 1995, the Official
Languages Ordinance (Cap 5) was amended to enable any court to use either or both
of the official languages in any proceedings before it as it thinks fit; to enable
a party or his legal representatives or a witness in proceedings in a court to
use either or both the official languages, or such other language as the court
may permit; to provide that the decision of a court to use one of the official
languages in any proceedings before it, is final; and to empower the Chief Justice
to make rules and issue practice directions to regulate the use of Chinese language
in the courts. Efforts are being made on various fronts to improve the use
of Chinese in the higher courts. A Practice Direction on the use of Chinese in
the Court of First Instance has been prepared by theJudiciary.
Training for bilingual judges has also been introduced, including the provision
of courses on Chinese judgment writing skills. No matter whether English
or Chinese is used in the proceedings, everyone has a right to use the language
of his choice to give evidence. The court will arrange interpretation facilities.
Changing
the law Information based on the Departmental
publication "Legal System in Hong Kong" printed in 2008 The
common law The common law is essentially judge-made law and is to be
found primarily in the judgments of the courts of the HKSAR and other common law
jurisdictions. While it is flexible and adaptable, the doctrine of precedent often
makes it difficult for judges to change well-established legal doctrines. If significant,
rather than incremental, changes need to be made to the law, it is usually necessary
to achieve these by way of legislation. Statute law Initiatives
for legislative change come from a variety of sources: from within government;
from members of theLegislative
Council; from theLaw
Reform Commission; and from the community. As a general rule, the Government
of the HKSAR will be responsible for drafting and introducing bills, motions and
subsidiary legislation. Under theBasic
Law, members of the Legislative Council of the HKSAR may also individually
or jointly introduce bills which do not relate to public expenditure or to the
political structure or to the operation of the government. However, the written
consent of the Chief Executive is required before bills relating to government
policies are introduced. About 100 ordinances are passed into law each year. Several
hundred pieces of subsidiary legislation are also made. The Basic Law provides
that the Chief Executive must consult theExecutive
Council before introducing bills to the Legislative Council. Ordinances are
enacted by the Legislative Council and will only take effect after they are signed
and promulgated by the Chief Executive. When a Bill is presented to the
Legislative Council, it has to go through three readings and a committee stage.
The first reading is purely formal, and is made by the Clerk to the Legislative
Council who reads out the title of the Bill. The second reading starts with a
speech made by the member or public officer in charge of the Bill. He or she gives
a brief outline of its principles and main provisions and usually concludes by
moving that the debate on the second reading be adjourned. In the meantime,
a committee of the Legislative Council may, at the discretion of its members,
be constituted to consider the Bill in detail. In the committee stage, the Bill
is considered clause by clause, and any debate is confined to the details of each
clause. The committee may make amendments, provided that these are relevant to
the subject matter of the Bill and do not alter it in principle. When all the
clauses have been so considered, the chairman of the committee reports to the
Council that the Bill has passed through the committee stage with or without amendment.
At the resumption of the debate, any member of the Legislative Council may speak
on the issues raised by the Bill. The member or public officer in charge of the
Bill has the right of reply. Members are then asked to vote that the Bill be read
a second time. If carried, the Bill is formally read the second time, meaning
that the Bill has been agreed to in principle. The Bill is then deemed to
be set down for the third reading. It is later read formally the third time at
the same sitting. A Bill which has received its third reading becomes law when
it is signed and promulgated by the Chief Executive and then gazetted as an ordinance. The
Law Reform Commission TheLaw
Reform Commission is an independent advisory body which considers areas of
law reform referred to it by the Secretary for Justice or the Chief Justice of
the Court of Final Appeal. It comprises prominent lawyers and non-lawyers appointed
to it on a voluntary part-time basis. It is served by a secretariat of lawyers
from the Department of Justice who provide research and administrative support.
TheCommission's
reports are presented to the Government and are available to the public. Since
its establishment in 1980, the Commission has issued reports on a wide range of
subjects, including commercial arbitration, divorce, fraud, privacy, guardianship
and custody and the age of criminal responsibility. The majority of the recommendations
contained in the Commission's reports have subsequently been implemented through
legislation. The Standing Committee on Company Law Reform The
Standing Committee on Company Law Reform (SCCLR) is an independent non-statutory
committee which was established in 1984. It is responsible for ensuring that regular
amendments are made to the Companies Ordinance (Cap 32) to meet the needs of the
business community and regulators. The SCCLR also advises the Financial
Secretary on amendments required to the Securities and Futures Ordinance (Cap
571) with the objective of providing support to the Securities and Futures Commission
in administering the Ordinance. The SCCLR is at present chaired by a Senior Counsel
and its secretarial services are provided by the Companies Registry. It comprises
members from relevant government bureaus and departments, the Securities and Futures
Commission, the Hong Kong Exchanges and Clearing Limited and the academic, accountancy,
banking, commercial, legal and company secretarial sectors. The SCCLR is currently
heavily involved in the rewrite of the Companies Ordinance which commenced in
mid-2006. It assumes a key role in advising on all major proposals/recommendations
arising from the exercise.
The
legal profession Information based on the
Departmental publication "Legal System in Hong Kong" printed in 2008 The
legal profession in Hong Kong is divided into two distinct branches - barristers
(also known as "counsel") and solicitors. Solicitors have limited rights
of audience before the courts whereas barristers have unlimited rights of audience
in all courts and tribunals where legal representation is allowed. Lawyers practising
within one branch of the profession are not, at the same time, allowed to practise
within the other. While the majority of members of the legal profession
are engaged in private practice, a significant number work in one of the government
legal departments (such as the Department
of Justice or theLegal
Aid Department), or are employed as legal advisers to public or private companies,
or engaged in teaching and research at one of Hong Kong's tertiary institutions. Barristers There
are around 1,000 practising barristers in Hong Kong. They are all members of the
Hong Kong Bar Association ("HKBA"). The Bar Council of the HKBA, which
is elected annually, is the governing body for barristers. The conduct and
etiquette of members of the Bar are governed by the HKBA's Code of Conduct as
amended from time to time. Every barrister, whether in practice or not, must maintain
the standards and professional integrity of the Bar. The Bar Council is responsible
for investigating and considering complaints against the conduct of barristers.
Should the circumstances warrant, the complaints will be referred to the Barristers
Disciplinary Tribunal which will determine the matter and, if the complaint is
found to be made out, impose the appropriate punishments. In respect of
legal works conducted in Hong Kong, barristers can only accept instructions from
a firm of solicitors, or members of professional bodies recognised by the Bar
Association. Hence, the point of contact for members of the public in most cases
is the solicitor who gathers the evidence of a case and interviews witnesses.
They can also be employed, or instructed, as the case may be, by the Department
of Justice, the Legal Aid Department or the Duty Lawyer Service. In respect of
legal works conducted outside Hong Kong, instructions from foreign lawyers or
directly from lay clients are allowed provided the conditions in Annex 14 of the
HKBA's Code of Conduct are satisfied. When a barrister has attained a substantial
level of accomplishment and recognition, and has been in practice for at least
10 years, he or she can apply to become Senior Counsel (a process generally known
as "taking silk", a reference to the material of the gown they wear
in court). The expertise of a Senior Counsel is usually sought in the more complex
cases. Barristers must practise as sole-proprietors, whereas solicitors
are allowed to practise together in a partnership. While barristers usually practise
in a set of chambers, their legal, financial and professional duties are separate
and distinct from those of the other barristers sharing those chambers. No one
barrister is responsible for the conduct of another barrister in the same set
of chambers. Solicitors There are over 5,900 solicitors practising
in Hong Kong. TheLaw
Society is the governing body of the profession, which is largely self-regulatory.
An elected Council has wide responsibilities for maintaining professional and
ethical standards. It is responsible for issuing practising certificates. The
work of the Law Society includes investigating complaints made by members of the
public against solicitors (which may result in disciplinary proceedings); researching
and commenting on legislative proposals; setting and maintaining high standards
of work and ethical practice through practice rules, directions and guidelines;
and maintaining frequent contacts with legal professional bodies in other jurisdictions. The
Law Society sets and monitors education and training standards for solicitors
and administers a scheme of Continuing Professional Development (CPD) which is
mandatory for all trainee solicitors and all solicitors with practising certificates.
The scheme includes mandatory risk management education for all levels of the
profession. The Law Society also registers and regulates the practice of
all foreign lawyers practising in Hong Kong. There are 54 established foreign
law firms which advise on the law of their home jurisdictions. Foreign lawyers
can be admitted as Hong Kong solicitors either by obtaining an exemption from,
or by passing, the Overseas Lawyers Qualification Examination, administered by
the Law Society. Some 400 solicitors are admitted to practise as notaries
public in Hong Kong. The Hong Kong Society of Notaries is the governing body for
notaries public, and the Chief Justice is the appointing authority for Hong Kong
notaries. The Chief Justice is responsible for appointing a Notaries Public Disciplinary
Tribunal Panel from which the Notaries Public Disciplinary Tribunal is set up
to inquire into the conduct of notaries public.
The
courts Information based on the Departmental
publication "Legal System in Hong Kong" printed in 2008 Thecourts
of justice in Hong Kong are the Court of Final Appeal, the High Court (which
comprises the Court of Appeal and the Court of First Instance), the District Court,
the Magistrates' Courts, the Coroner's Court, and the Juvenile Court. In addition,
there are a number of tribunals which have jurisdiction to adjudicate on disputes
relating to specific, defined areas. These include the Lands Tribunal, the Labour
Tribunal, the Small Claims Tribunal and the Obscene Articles Tribunal. Court
of Final Appeal TheJoint
Declaration and theBasic
Law specifically guarantee the establishment on 1 July 1997 of a Hong Kong
based Court of Final Appeal, and this replaced the Judicial Committee of the Privy
Council in London as the final appellate court for Hong Kong. It has jurisdiction
conferred on it by the Hong Kong Court of Final Appeal Ordinance (Cap 484). Under
the provisions in the Basic Law and the Hong Kong Court of Final Appeal Ordinance
(Cap 484), the judges of the Court of Final Appeal are appointed by the Chief
Executive, in accordance with the recommendations of an independent commission,
and those appointments must be endorsed by the legislature. The Hong Kong
Court of Final Appeal Ordinance provides that an appeal shall be heard and determined
by the Court constituting the Chief Justice, three permanent judges and one non-permanent
Hong Kong judge or one judge from another common law jurisdiction. High
Court The High Court comprises the Court of Appeal and the Court of
First Instance. Court of Appeal The
Court of Appeal hears appeals on all matters, civil and criminal, from the Court
of First Instance and the District Court, as well as appeals from the Lands Tribunal.
It also makes rulings on questions of law referred to it by the lower courts. Court
of First Instance The jurisdiction of the Court of First Instance
is unlimited in both criminal and civil matters. The latter include divorce, admiralty,
bankruptcy, company winding-up, adoption, probate and lunacy. The Court of First
Instance also exercises appellate jurisdiction in hearing appeals from the Magistrates'
Courts, the Labour Tribunal, the Small Claims Tribunal and the Obscene Articles
Tribunal. District Court The District Court has limited jurisdiction
in both civil and criminal matters. It has civil jurisdiction to hear monetary
claims over $50,000, but not more than $1,000,000. In the case of claims for recovery
of land, or where the title to an interest in land comes in question, the annual
rent or rateable value or the annual value must not exceed $240,000. Apart from
its general civil jurisdiction, the District Court has exclusive jurisdiction
over claims brought under the Employees' Compensation Ordinance (Cap 282), tax
recovery claims under the Inland Revenue Ordinance (Cap 112) and distress for
rent under the Landlord and Tenant (Consolidation) Ordinance (Cap 7). Matrimonial
causes and adoption applications must also be commenced in the District Court
(the court which handles these types of cases is known as the Family Court). In
its criminal jurisdiction, the court may try the more serious cases with the exception
of a few very serious offences such as murder, manslaughter and rape. The maximum
term of imprisonment it can impose is seven years. It also exercises limited appellate
jurisdiction in hearing appeals from tribunals and statutory bodies conferred
on it under various ordinances, including the Stamp Duty Ordinance (Cap 117),
the Pneumoconiosis (Compensation) Ordinance (Cap 360) and the Occupational Deafness
(Compensation) Ordinance (Cap 469). Magistrates' Courts Magistrates
exercise a criminal jurisdiction, which covers a wide range of indictable and
summary offences. Their powers of punishment are generally restricted to a maximum
of two years' imprisonment, or a fine of $100,000, but in respect of certain offences
their powers are greater. All indictable offences originate before a magistrate.
The Secretary for Justice may apply to have a case transferred to the District
Court or committed to the Court of First Instance depending on the seriousness
of the case. Appeals are brought from a magistrate to a judge of the Court of
First Instance. Special magistrates may be qualified lawyers or persons
with substantial experience in the legal field. They deal with cases of a more
routine nature, such as hawking and minor traffic cases. In general, they have
no power of imprisonment and can only impose a maximum fine of $50,000. Coroner's
Court The Coroner's Court inquires into deaths which occur as a result
of accident or violence, or under suspicious circumstances, when a person dies
suddenly, or when a dead body is found in or brought into Hong Kong. Juvenile
Court The Juvenile Court has jurisdiction to hear charges against children
(aged under 14) and young persons (aged between 14 and 16) for any offence other
than homicide. Children under the age of 10 are deemed not to have reached the
age of criminal responsibility and accordingly no court, including the Juvenile
Court, has jurisdiction over cases involving such young people. However, the Juvenile
Court does have power to deal with care and protection cases involving young people
aged up to 18. Lands Tribunal The four principal judicial functions
of the Lands Tribunal are to: - determine the sums payable by the Government
and others for compensation to persons whose land is compulsorily resumed or the
value of which is reduced because of public or private developments
- determine
building management disputes;
- determine appeals from decisions of the
Commissioner of Rating and Valuation and appeals against the assessment of the
prevailing market value of property made by the Director of Housing; and
-
determine all matters under the Landlord and Tenant (Consolidation) Ordinance
(Cap 7).
Labour Tribunal The Labour Tribunal provides
a quick, inexpensive and informal method of settling disputes between employees
and employers. No legal representation is allowed. It deals with claims arising
from the alleged breach of a term of a contract of employment, for wages in lieu
of notice of termination of service, arrears of wages, statutory holiday pay,
annual leave pay, sickness allowance, maternity leave pay, bonus, double pay,
severance pay, long service payments and so on. Small Claims Tribunal The
Small Claims Tribunal hears minor monetary claims involving amounts not exceeding
$50,000. The hearing is informal and no legal representation is allowed. Obscene
Articles Tribunal The Control of Obscene and Indecent Articles Ordinance
(Cap 390) came into force in 1987 providing for the establishment of the Obscene
Articles Tribunal. The two main functions of the tribunal are to:
- determine whether an article referred to it by a court or a magistrate is
an obscene or indecent article and whether any matter publicly displayed is indecent;
-
classify an article as Class I (neither obscene nor indecent), Class II (an indecent
article) or Class III (an obscene article).
Administrative tribunals
and boards In addition to the legal bodies mentioned earlier, a number
of ordinances establish tribunals to deal specifically with appeals against administrative
decisions made under the ordinances in question. Given the increasing extent to
which the citizen is affected by the decisions of officials, such appeal rights
are assuming greater importance. Administrative
Appeals Board The Administrative Appeals Board Ordinance (Cap
442) came into force in 1994 providing for the establishment of an independent
Administrative Appeals Board. The Board, which comprises people with legal expertise
and a wide spectrum of experience, deals with a wide range of statutory appeals
against certain administrative decisions. It conducts hearings in public save
for special circumstances and allows the appellant the right to attend and be
represented at the Board hearings. It may confirm, vary or reverse the original
decision of the decision maker or substitute therefor such other decision or make
such other order as it may think fit. The Board is required to state in writing
the reasons for its decisions. Market Misconduct
Tribunal The Market Misconduct Tribunal was established under
the Securities and Futures Ordinance (Cap 571) which came into force on 1 April
2003. The Market Misconduct Tribunal replaced the Insider Dealing Tribunal on
the same day, subject to certain transitional arrangements. The Tribunal consists
of a Chairman, who is a judge or a former judge of the High Court, and two ordinary
members who must not be public officers. The Tribunal, in civil proceedings instituted
by the Financial Secretary, determines whether market misconduct (which means
insider dealing or any of five other specified types of conduct) in relation to
securities of a listed corporation has taken place, the identity of any person
engaged in that market misconduct, and the amount of profit gained (or loss avoided)
as a result of the market misconduct. The Tribunal makes orders consequential
to those determinations. Securities and Futures
Appeals Tribunal The Tribunal is a full-time review body which
was established under the Securities and Futures Ordinance (Cap 571) on 1 April
2003. The Tribunal is chaired by a High Court Judge. Its statutory purpose is
to act as a safeguard to ensure that regulatory decisions made by relevant regulatory
authorities including the Securities and Futures Commission and the Hong Kong
Monetary Authority are reasonable and fair. It also represents one of the various
initiatives under the Securities and Futures Ordinance to enhance the Securities
and Futures Commission's accountability. Commissions and commissioners In
addition to the judicial and administrative tribunals and boards described above,
there are a number of other bodies set up to oversee compliance with specific
legislation and to which members of the public may have recourse if they feel
aggrieved. Electoral Affairs Commission TheElectoral
Affairs Commission was established in 1997 under the Electoral Affairs Commission
Ordinance (Cap 541). The Commission comprises three members and the Chairman is
a judge of the High Court. The Commission's main functions are to demarcate electoral
boundaries and to supervise the conduct of public elections in Hong Kong. The
Commission issues guidelines on election-related activities. It operates a complaints
committee to handle complaints against breaches of the guidelines and contraventions
of electoral law. All these are done for the purpose of ensuring that elections
in Hong Kong are conducted openly, honestly and fairly. Equal
Opportunities Commission The Equal Opportunities Commission is
a statutory body set up in 1996 to implement the Sex Discrimination Ordinance
(Cap 480), the Disability Discrimination Ordinance (Cap 487) and the Family Status
Discrimination Ordinance (Cap 527). The Commission works towards the elimination
of discrimination on the grounds of sex, marital status, pregnancy, disability
and family status. Its main functions are to eliminate sexual harassment, and
harassment and vilification on the ground of disability; to promote equality of
opportunities between men and women, between persons with and without a disability
and irrespective of family status; to investigate complaints of discrimination;
and to endeavour to settle complaints by conciliation. Where conciliation has
been attempted but has not succeeded; the Commission has the power to give assistance
to an aggrieved person to bring legal action in the District Court. The
Ombudsman TheOffice
of the Ombudsman of Hong Kong (formerly known as the Office of the Commissioner
for Administrative Complaints) was established by law in 1989. Appointed by theChief
Executive of the Hong Kong Special Administrative Region under The Ombudsman
Ordinance (Cap 397), the Ombudsman is the community's watchdog over public administration
and endeavours to ensure that: - bureaucratic constraints do not interfere
with administrative fairness;
- public authorities are readily accessible
to the public;
- abuse of power is prevented;
- wrongs are righted;
-
public officers are not falsely or unjustly accused;
- human rights are
protected;
- the public sector improves in quality, efficiency and effectiveness.
The
Ombudsman operates within the legal framework of The Ombudsman Ordinance. Three
major amendments have been made to the Ordinance since its enactment. In
1994, the Ordinance was amended to allow the Ombudsman to receive complaints directly
from members of the public (rather than via Legislative Councillors as had previously
been required), initiate investigations in the absence of complaints and publish
anonymised investigation reports. In 1996, the Ombudsman's jurisdiction was extended
to cover complaints of non-compliance with the Code on Access to Information against
government departments and specified public organisations, including the Hong
Kong Police Force and the Independent Commission Against Corruption. In December
2001, the Ordinance was amended to confer on the Ombudsman the legally independent
status of a "corporation sole", which "shall have perpetual succession"
and "may sue or be sued". This amendment made it clear that the Ombudsman
"shall not be regarded as a servant or agent of the Government as enjoying
any status, immunity or privilege of the Government". It also gave the Ombudsman
full autonomy in conducting his own administrative and financial businesses. This
marked the complete severance of the Office from government systems, procedures
and practices. Depending on the nature and gravity of complaints, the Ombudsman
addresses alleged grievances by preliminary inquiries or full investigation. Where
only minor or no maladministration is involved, and with the voluntary consent
of both the complainant and the organisation concerned, the Ombudsman may resolve
the matter by way of mediation. For self-initiated investigations, the Ombudsman
focuses on matters of wide public interest or community concern that call for
review of major administrative systems and procedures, processes and practices. In
all instances, the office monitors its recommendations and suggestions for improvement
or remedy. While these are not legally binding, they have enjoyed almost full
acceptance by the organisations concerned over the years. To enhance awareness
of its services and to promote accountability and open governance, the office
arranges talks, visits and media publicity from time to time. The Ombudsman also
maintains regular contact with his counterparts in the region and internationally. Privacy
Commission ThePrivacy
Commissioner's Office is an independent statutory body appointed to monitor
and supervise compliance with the Personal Data (Privacy) Ordinance (Cap 486),
which was enacted to protect the privacy of individuals in relation to personal
data. The main provisions of the Personal Data (Privacy) Ordinance came into force
on 20 December 1996. The Privacy Commissioner for Personal Data's statutory
functions and powers include: the investigation of suspected contraventions of
the requirements of the Ordinance; the approval and issuance of codes of practice
giving practical guidance on compliance with the requirements of the Ordinance;
promoting awareness and understanding of, and compliance with, the provisions
and data protection principles in the Ordinance; the examination of proposed legislation
that may affect the privacy of individuals in relation to personal data; the inspection
of personal data systems used by data users, including government departments;
research and monitoring with respect to developments in technology that may adversely
affect the privacy of individuals in relation to personal data; and liaison and
co-operation with persons outside Hong Kong performing a similar function. International
co-operation The judgments and awards of the Hong Kong High Court and
above may be enforced in most common law jurisdictions and, in consequence of
international agreements and arrangements, in a number of foreign countries, including
France, Germany and Italy. Reciprocal arrangements exist for the enforcement in
Hong Kong of the judgments of the superior courts of those countries that will
enforce Hong Kong's judgments. Similarly, maintenance orders made in matrimonial
proceedings can be enforced, on a reciprocal basis, in a number of overseas countries. Extradition
agreements provide for the surrender of persons who are accused or convicted of
a serious criminal offence committed within the jurisdiction of one of the parties
to the agreement who are found in the territory of the other party. The courts
in Hong Kong also have jurisdiction, on request from a foreign court, to obtain
evidence in Hong Kong for civil or criminal proceedings in that court. Similarly,
the courts in Hong Kong can issue Letters of Request to overseas courts for the
obtaining of evidence. Mutual legal assistance in the investigation and prosecution
of criminal offences in Hong Kong and overseas and in the recovery of proceeds
of crime is also given and obtained directly by the International Law Division
of the Department of Justice, under the Mutual Legal Assistance in Criminal Matters
Ordinance (Cap 525).
The
Judiciary Information based on the Departmental
publication "Legal System in Hong Kong" printed in 2008 The
Hong Kong courts are operated by theHong
Kong Judiciary, independently both of the executive and the legislature. The
Chief Justice is the head of the judiciary, both in a judicial and an administrative
sense. He is assisted on the administrative support side by a Judiciary Administrator,
ranked at the same level as a policy secretary. On the judicial side, the open
courts at the various levels described in Chapter 8 are presided over by judges
with professional legal qualifications and experience from both Hong Kong and
other common law jurisdictions. Some senior judges are recruited from amongst
eminent local barristers, others are promoted from within the judiciary or recruited
from senior posts in the Department of
Justice. They all make their judgments independently, subject to appeal as
laid down by law. In addition, there are a Registrar and Deputy Registrars who
relieve the judges of much "chambers" work (i.e. the work done before,
after or instead of full court proceedings). Under theBasic
Law, judges are appointed by theChief
Executive of the HKSAR on the recommendation of the Judicial Officers Recommendation
Commission. This is an independent statutory body constituted under the Judicial
Officers Recommendation Commission Ordinance (Cap 92), composed of local judges,
persons from the legal profession and eminent persons from other sectors. The
Chief Justice of the Court of Final Appeal and the Chief Judge of the High Court
must be Chinese citizens who are permanent residents of Hong Kong with no right
of abode in any foreign country. All judges and magistrates must have been qualified
as legal practitioners either in Hong Kong or in another common law jurisdiction
and have had substantial professional experience. Judges have security of
tenure until they reach retirement age (which, depending on their date of appointment,
is either 60 or 65 years for District Court judges and 65 for judges of the Court
of Final Appeal and the High Court). The Basic Law stipulates that a judge may
only be removed for inability to discharge his or her duties, or for misbehaviour,
by the Chief Executive on the recommendation of a tribunal appointed by the Chief
Justice of the Court of Final Appeal, consisting of not fewer than three local
judges. In the case of the Chief Justice, the tribunal (appointed by the Chief
Executive) must consist of not fewer than five local judges. In addition, before
a judge of the Court of Final Appeal or the Chief Judge of the High Court may
be removed from office, the Basic Law stipulates that the endorsement of the Legislative
Council is required. The independence of the judiciary, in Hong Kong as
elsewhere, is essentially made up of two aspects - constitutional independence
and independence of outlook. Judicial independence is underpinned by the method
of judicial appointment and the guarantee of security of tenure. A judge also
enjoys and will continue to enjoy a large measure of protection against civil
liability in respect of acts performed while sitting in that capacity, and his
conduct cannot be questioned by the legislature. This judicial independence is
a fundamental aspect of the rule of law. The
interpretation and amendment of the Basic Law Article 158 of the Basic
Law provides: "The power of interpretation of this
law shall be vested in the Standing Committee of the National People's Congress. The
Standing Committee of the National People's Congress shall authorise the courts
of [the HKSAR] to interpret on their own, in adjudicating cases, the provisions
of this Law which are within the limits of autonomy of the Region. The
courts of [the HKSAR] may also interpret other provisions of this Law in adjudicating
cases. However, if the courts of the Region, in adjudicating cases, need to interpret
the provisions of this Law concerning affairs which are the responsibility of
the Central People's Government, or concerning the relationship between the Central
Authorities and the Region, and if such interpretation will affect the judgments
on the cases, the courts of the Region shall, before making their final judgments
which are not appealable, seek an interpretation of the relevant provisions from
the Standing Committee of the National People's Congress through the Court of
Final Appeal of the Region. When the Standing Committee makes an interpretation
of the provisions concerned, the courts of the Region, in applying those provisions,
shall follow the interpretation of the Standing Committee. However, judgments
previously rendered shall not be affected. The Standing Committee
of the National People's Congress shall consult its Committee for the Basic Law
of [the HKSAR] before giving an interpretation of this Law." The
Basic Law Committee of the HKSAR is comprised of twelve persons, six of whom shall
be from the Mainland and the remaining six from Hong Kong. Hong Kong members must
be Chinese citizens who are permanent residents of the HKSAR with no right of
abode in any foreign country and are nominated jointly by the Chief Executive,
the President of theLegislative
Council and the Chief Justice of the SAR Court of Final Appeal for appointment
by the Standing Committee of the National People's Congress. The power of
amendment of the Basic Law is vested in the National People's Congress. The powers
to propose bills for amendments to the Basic Law are respectively vested in the
Standing Committee of the National People's Congress, the State Council and the
HKSAR. The Committee for the Basic Law will consider the proposed amendments before
they are put to the National People's Congress. The amendment to the Basic Law
shall not contravene the established basic policies of the People's Republic of
China regarding Hong Kong.
The
role of the Secretary for Justice Information
based on the Departmental publication "Legal System in Hong Kong" printed
in 2008 The Secretary for
Justice is appointed by the Central People's Government, after being nominated
by theChief
Executive. No person may be appointed as the Secretary for Justice unless
he or she has been admitted as a legal practitioner in Hong Kong or in certain
other common law jurisdictions. The Secretary for Justice must be a Chinese citizen
who is a permanent resident of the HKSAR with no right of abode in any foreign
country and have ordinarily resided in Hong Kong for a continuous period of not
less than 15 years. The Secretary for Justice is the principal legal adviser
to the Chief Executive, to the government and to individual government departments
and agencies, and is a member of theExecutive
Council. In addition to duties and responsibilities in relation to the conduct
of criminal proceedings, the Secretary for Justice is the defendant in all civil
actions brought against the government in the courts. As guardian of the
public interest in a wider sense, the Secretary for Justice may apply for judicial
review to enforce public legal rights. The Secretary for Justice has a right to
intervene in any case involving a matter of great public interest. In addition,
the Secretary for Justice: - represents the public interest as counsel
to Tribunals of Inquiry;
- is the Protector of Charities and must be joined
as a party in all actions to enforce charitable or public trusts; and
-
has a more general public interest role as "amicus curiae" (literally
"friend of the court"), the most important example of which is the bringing
of alleged instances of contempt of court to the notice of the courts.
The
Secretary for Justice is also the ex officio chairman of theLaw
Reform Commission. The Commission includes in its membership both academic
and practising lawyers, and prominent members of the community. The Commission
considers for reform those aspects of the laws of Hong Kong which are referred
to it by the Secretary for Justice or the Chief Justice of the Court of Final
Appeal.
The
Department of Justice Information based
on the Departmental publication "Legal System in Hong Kong" printed
in 2008 In addition to the duties outlined in Chapter 10, the Secretary
for Justice is also head of the Department
of Justice, which comprises six divisions, five of which are professional
divisions headed by a Law Officer to whom the Secretary for Justice delegates
certain powers and responsibilities. The remaining division deals with administrative,
training and human resources matters, and the development needs of the department.
Providing direct support to the Secretary for Justice is the Secretary
for Justice's Office. A principal function of the Office is to assist the
Secretary in relation to matters arising from theExecutive
andLegislative
Councils, whether this be the promotion of legislation or providing answers to
legislators' questions. Civil Division The Civil
Division, headed by the Law Officer (Civil Law), provides legal advice on
civil law to all government bureaus and departments and represents the government
both as solicitors and as barristers in all civil litigation, including arbitrations.
Specialist units advise on building and planning law, on the drafting of government
contracts and on the role of the government as employer. The division advises
on the adequacy of existing legislation in relation to civil law, and on the preparation
of drafting instructions in respect of new legislation or amendment to existing
legislation. International Law Division The International
Law Division is headed by the Law Officer (International Law) and provides
advice on public international law to the government and negotiates, or provides
legal advisers on negotiations for, bilateral agreements. Counsel from the division
also participate, as members of the Chinese delegation, in the negotiation of
multilateral treaties on public and private international law. The Mutual Legal
Assistance Unit under this division handles and co-ordinates requests to and from
the HKSAR concerning surrender of fugitive offenders and mutual legal assistance
and advises on applications for transfer of sentenced persons to and from the
HKSAR. Law Drafting Division The Law
Drafting Division, headed by the Law Draftsman, is responsible for drafting
all government legislation of the HKSAR. Counsel in the division also advise the
government on legal issues identified in the course of developing the draft legislation.
When the final draft of a piece of legislation is submitted to the Executive Council
for consideration and to the Legislative Council to go through the legislative
process, the draftsman has to attend meetings of each Council, together with representatives
from the relevant government bureau, to answer questions relating to drafting
and general legal issues. Reflecting the Draftsman's role as keeper of the statute
book, the division also vets all proposed legislation that is initiated by persons
or bodies other than the government. This function is performed to ensure that
all legislation conforms to the requirements as to the form of bills and to the
general form of Hong Kong legislation. To help establish standardised Chinese
equivalents for English legal expressions, the division has compiled anEnglish-Chinese
Glossary of Legal Terms and aChinese-English
Glossary of Legal Terms. These glossaries refer to the bilingual legal expressions
used in our legislation. TheBilingual
Laws Information System (BLIS) is a database of the Laws of Hong Kong developed
and maintained by the division. It is a free service to the public and is available
on the internet. The division also maintains the Loose-Leaf Edition of the Laws
of Hong Kong. Legal Policy Division The Legal
Policy Division is headed by the Solicitor General. The division advises Government
departments and bureaus on whether proposed legislation, or a particular policy,
is consistent with the Basic Law, international human rights standards, and established
principles underlying the legal system. It also has a specialist unit that provides
advice on (and promotes understanding of) the law on the Mainland. The division
plays an active role in promoting understanding of Hong Kong's rule of law and
the Basic Law locally, overseas and in the Mainland. The counsel who work in the
Law Reform Commission Secretariat are also part of the division. Prosecutions
Division The Prosecutions Division
is headed by the Director of Public Prosecutions. Lawyers from the division conduct
the prosecution in the majority of Court of First Instance and District Court
trials and often appear before magistrates in important cases or when difficult
points of law arise. The majority of cases before magistrates are prosecuted by
Court Prosecutors. In addition to court appearances, lawyers in the Prosecutions
Division advise the law enforcement agencies and other government departments
responsible for the prosecution of offences. Within the Prosecutions Division
are the two Trial Preparation Sections (Court of First Instance and District Court);
the Court Prosecutors, Police Advice (Magistrates Court) and Vice Section; the
Management and Training and Complaints against Police Section; the Court Specialists
(Triad and Organised Crime) Section; the Court Specialists (Customs and Excise)
Section; the Court Specialists (Special Duties) Section; the Appeals and Narcotics
Policy Co-ordination Section; the Policy, Research and Departmental Prosecutions
Section; the Basic Law and Bill of Rights, Judicial Review, Obscene Articles and
Child Pornography and Gambling Section; the Commercial Crime (Domestic Proceeds
of Crime and Anti-Terrorism) Section; the Commercial Crime (Computer Crime and
Copyright) Section; the Commercial Crime (Market Misconduct and Inland Revenue)
Section; and the two Independent Commission Against Corruption Sections (public
and private sectors). Administration and Development Division The
Administration and Development Division
is headed by the Director of Administration and Development. As controlling officer,
the Director is responsible for reporting to the Legislative Council on the finances
of the Department of Justice. The division deals with the many and varied matters
involved in running a major government department, including administrative, financial,
accounting and management services; office automation; training; library; general
translation services; recruitment; human resources; and office accommodation.
Legal
aid Information based on the Departmental
publication "Legal System in Hong Kong" printed in 2008 The
Legal Aid Department TheLegal
Aid Department provides legal representation in both civil and criminal cases
to any person who has reasonable grounds for pursuing or defending a legal action
but who would otherwise be prevented from doing so by lack of means. The provision
of legal aid services is funded by the government. Eligible persons are provided
with legal representation either free or, depending on their financial circumstances,
upon payment of a graduated contribution. Depending on the amount of damages successfully
recovered, an aided person may be required to reimburse all or part of the legal
costs incurred or expenses paid by the Director of Legal Aid on his or her behalf. Applications
for legal aid are determined by the department's lawyers. If legal aid is granted,
the Director may assign the department's own lawyers or solicitors in private
practice to act for the aided persons. Barristers are also assigned whenever it
is necessary to instruct them. Legal aid in civil cases Legal
aid is available for most types of civil proceedings in the District Court, Court
of First Instance, Court of Appeal and Court of Final Appeal. Legal aid is also
available for cases before the Mental Health Review Tribunal and in the Coroner's
Court where the Director is of the opinion that the interests of public justice
require that legal aid be given. To qualify for legal aid, applicants must
pass a means and merits test. The means test evaluates whether an applicant's
financial resources exceed the financial eligibility limit allowed for ordinary
or supplementary legal aid. The merits test evaluates whether the applicant has
reasonable grounds for bringing or defending civil proceedings and a reasonable
prospect of success or of deriving some tangible benefit from being provided with
legal representation at public expense. If both the means and merits tests
are satisfied, legal aid will be offered. The Director has the discretion to waive
the upper financial eligibility limit in meritorious Bill of Rights cases. An
applicant who is aggrieved by the Director's decision to refuse legal aid may
appeal to the Registrar of the High Court, or a Committee of Review chaired by
the Registrar in relation to appeals to the Court of Final Appeal. The decision
of the Registrar or the Committee is final. Legal aid for criminal cases Legal
aid is available for all types of criminal cases in the District Court, the Court
of First Instance, the Court of Appeal and for appeals against decisions of magistrates.
It is also available for appeals to the Court of Final Appeal, and committal proceedings
prior to trial in the Court of First Instance. In order to qualify for legal
aid in criminal cases, an applicant's financial resources cannot exceed the financial
eligibility limit allowed for civil legal aid cases. An applicant who passes the
means test will be granted legal aid for committals and trials. Legal aid is only
available for appeals where there are meritorious grounds. There is no provision
for appeal against the Director's refusal to grant legal aid in criminal cases.
For applicants who fail the means test, the Director can still grant legal aid
if he considers it is desirable in the interests of justice to do so. If the case
involves a charge of murder, treason or piracy with violence, the judge can exempt
an applicant for legal aid from having to satisfy the means test. In all other
cases, the judge may only grant legal aid to those persons who can pass the means
test. Appeals against refusals of applications for legal aid for criminal
appeals to the Court of Final Appeal are heard by a special committee appointed
by the Registrar of the High Court. The Supplementary Legal Aid Scheme The
financial eligibility limit for this scheme is higher than the Ordinary Legal
Aid Scheme and is intended to assist the so-called "sandwich class".
Initiated in 1984, it now covers cases of personal injury and death, medical,
dental and legal professional negligence where the claim for damages is likely
to exceed $60,000, and employees' compensation claims irrespective of the amount
of the claim. The scheme is self-financing and is funded by contributions
paid by the aided person out of their financial resources and from damages or
compensation recovered. When a case is successfully completed, the aided person
pays to the Director under the scheme an amount equivalent to all costs incurred
and sums paid on his or her behalf, plus 10% of the damages he or she is awarded,
or 6% if the case is settled before counsel is briefed to attend trial. The
Duty Lawyer Service The Duty Lawyer Service was established in November
1978. It was then known as the Law Society Legal Advice and Duty Lawyer Schemes.
In August 1993, it was incorporated into a company limited by guarantee and renamed. The
Duty Lawyer Service is subvented by the HKSAR government, but independently administered
by the legal profession of Hong Kong. TheHong
Kong Bar Association and theLaw
Society each nominates four of its members to sit on the council of the service
which manages and administers its operations. Three lay members have also been
invited to sit on the council. The Duty Lawyer Service operates three schemes:
the Duty Lawyer Scheme, the Free Legal Advice Scheme and the Tel-law Scheme. The
Duty Lawyer Scheme provides legal representation to defendants who are charged
and brought before all Magistrates' Courts and Juvenile Courts. When the scheme
first commenced in January 1979, it covered only six offences and was available
only in three magistracies. The scheme was expanded gradually; in 1983 it was
extended to all the magistracies in Hong Kong and covered nine offences. After
the passing of the Hong Kong Bill of Rights Ordinance (Cap 383) in 1991, the scheme
was expanded to cover almost all of the criminal offences in magistracies. There
is a Court Liaison Office in every magistracy. Court Liaison Officers offer scheme
representation to all eligible defendants, which enables them to be represented
by a duty lawyer in all court hearings. To be eligible for such legal assistance,
a defendant has to pass the means and merit tests. Each eligible defendant has
to pay a handling charge of $400. As at January 2008, the financial eligibility
limit was $124,280 gross annual income. The Administrator of the service has the
discretion to exempt a defendant from payment of the handling charge. In 2007,
there were 1,549 barristers and solicitors on the Duty Lawyer Panel and 38,640
defendants were assisted under the scheme, which also assigns lawyers to represent
defendants facing extradition, to represent persons who are at risk of criminal
prosecution as a result of giving incriminating evidence in Coroners' inquests
and hawkers at the hearing of their appeals to the Municipal Services Appeals
Board. With effect from1 October 2003, the Duty Lawyer Scheme was expanded
to cover Care or Protection Proceedings in the Juvenile Court. Legal representation
is offered to those children/juveniles in care or protection proceedings whose
liberty is at stake. The number of clients for this part of the Duty Lawyer Scheme's
service averaged about 211 per month in 2007. The Free Legal Advice Scheme
was set up in 1978 to provide members of the public with free legal advice at
legal advice centres located in the District Offices of theHome
Affairs Department. The scheme operates nine evening advice centres. These
are situated at Central & Western, Eastern, Islands, Kwun Tong, Sha Tin, Tsuen
Wan, Wan Chai, Wong Tai Sin and Yau Tsim Mong. Apart from the Wanchai centre,
which opens twice a week, all the centres open once a week from 6.25 pm. Anyone
wishing to obtain free legal advice has to attend a referral agency to book an
appointment. All District Offices, Caritas Offices and sub-offices of theSocial
Welfare Department act as referral agencies for the scheme. In 2007, there
were over 900 volunteer lawyers participating in this scheme and 6,429 people
were given advice. The Tel-law Scheme was introduced in 1984 to provide
members of the public with taped legal information through the telephone. In 1995,
the Tel-law system was fully computerised and upgraded into a 24 hours automatic
answering service. The tapes are in Cantonese, English and Putonghua and cover
aspects of the law including matrimonial, landlord and tenant, criminal, financial,
employment, environmental and administrative law. They are constantly updated
and new tapes are added when a new subject is identified as being of interest
to the public. In 2007, there were 78 topics available and 28,335 calls were received. The
Legal Aid Services Council The Legal Aid Services Council is an independent
statutory body established in 1996 to advise the Chief Executive of the HKSAR
on legal aid policies. It also supervises the provision of legal aid services
by the Legal Aid Department, without interfering with the handling of individual
cases by the department. The council is chaired by a non-official who is not a
member of the legal profession. Its members include barristers, solicitors, lay
members and the Director of Legal Aid. The Council conducts reviews of legal aid
issues and of the legal aid services provided by the Legal Aid Department.
Other
government legal departments Information
based on the Departmental publication "Legal System in Hong Kong" printed
in 2008 Legal Advisory and Conveyancing Office The Legal
Advisory and Conveyancing Office is part of theLands
Department. It is responsible for: - the provision of legal advice
primarily to the Lands Administration Office of the Lands Department and to other
Government departments, including theGovernment
Property Agency and theHome
Affairs Department, on land related matters and ordinances;
- the drafting
of all land disposal and land acquisition documents;
- the assignment of
individual units to owners following the re-grant of expired non-renewable Government
leases;
- the apportionment of Government rents and premiums and the recovery
of outstanding arrears of Government rents (other than New Government Rent under
the Government Rent (Assessment & Collection) Ordinance (Cap 515)); and
-
the administration of the Lands Department Consent Scheme for the sale of units
in uncompleted developments including the approval of Deeds of Mutual Covenants
which set out the rights and obligations of the managers and co-owners of the
developments.
Land Registry The main functions of theLand
Registry are to: - register documents affecting land under the
Land Registration Ordinance (Cap 128) and its Regulations;
- administer
a land registration system by maintaining an up-to-date Land Register and related
land records;
- provide the public with facilities for search and supply
of copies of the Land Register and other land records;
- register owners'
corporations under the Building Management Ordinance (Cap 344);
- compile
and maintain the Street Index and the New Territories Lot/Address Cross Reference
Table; and
- provide government departments and agencies with property
information.
Intellectual Property Department TheIntellectual
Property Department has the following principal functions: - advising
the Commerce and Economic Development Bureau on intellectual property policies
and legislation;
- providing civil legal advice on intellectual property
matters to government bureaus and departments
- administering the Trade
Marks Ordinance (Cap 559), the Patents Ordinance (Cap 514) and the Registered
Designs Ordinance (Cap 522) for registration and protection of trade marks, patents
and designs, and conducting hearings under these ordinances;
- providing
facilities for public access to information on the trade marks, patents and design
registers;
- providing administrative support to the Copyright Tribunal;
- participating in negotiation and implementation of intellectual property
related international treaties;
- promoting intellectual property protection
through public education; and
- operating the Trade Marks, Patents, Designs
and Copyright Licensing Bodies Registries.
Official Receiver's
Office The principal functions of theOfficial
Receiver's Office are to: - provide an in-house management insolvency
service when appointed by the court and the creditors for the administration of
estates, which includes realisation of assets, adjudication of claims and distribution
of dividends where appropriate, and to perform a public sector role when acting
as trustee or liquidator of last resort;
- manage the schemes for contracting
out liquidation cases to experienced private sector insolvency practitioners,
and to supervise their conduct to ensure that they effectively carry out their
statutory duties;
- investigate into the affairs of bankrupts, directors
and officers of insolvent companies and to undertake any consequential prosecutions
of insolvency related offences, and to make applications for disqualification
of company directors whose conduct is considered to render them unfit so to act;
and
- administer the provisions of the Bankruptcy Ordinance (Cap 6) and
the winding-up provisions in Parts V and VI of the Companies Ordinance (Cap 32),
and to review and propose any necessary changes to insolvency legislation.
Companies
Registry The main functions of theCompanies
Registry are to: - incorporate local companies and register non-Hong
Kong companies under the provisions of the Companies Ordinance (Cap 32);
-
register documentation required by the various ordinances administered by the
Companies Registry, such as the Companies Ordinance, the Limited Partnerships
Ordinance (Cap 37), the Trustee Ordinance (Cap 29) (with respect to trust companies),
the Registered Trustees Incorporation Ordinance (Cap 306), the Money Lenders Ordinance
(Cap 163) and various incorporation ordinances;
- deregister defunct, solvent
private companies;
- provide the public with services and facilities to
search for and obtain information held by the Companies Registry on the various
statutory registers, current data of registered companies and image records of
registered companies;
- administer and enforce the provisions of the Companies
Ordinance and related legislation with particular reference to the regulatory
offences such as failures to file statutory returns and striking off defunct companies;
and
- advise the government on policy and legislative issues regarding
company law and related legislation.
Legal
education Information based on the Departmental
publication "Legal System in Hong Kong" printed in 2008 A
person wishing to qualify as a solicitor who obtains the degree of Bachelor of
Laws (LLB) and the Postgraduate Certificate in Laws (PCLL) from theUniversity
of Hong Kong ,theCity
University of Hong Kong or the Chinese
University of Hong Kong is also required to complete satisfactorily a period
of two years employment as a trainee solicitor in order to be eligible for admission
to practise in Hong Kong as such. A person with an LLB and the PCLL who
wishes to qualify as a barrister is eligible for admission as a barrister after
undertaking pupillage for six months. In order to practise, however, he or she
must undertake pupillage for a further six months, during which time he or she
has a limited right of practice. Law graduates of other universities may
qualify for practice as barristers or solicitors in Hong Kong in a number of ways,
including: - they may obtain the PCLL and then serve a traineeship
of two years (solicitors) or pupillage of one year (barristers);
- they
may qualify as a solicitor after passing or being exempted from sitting the Overseas
Lawyers Qualification Examination and satisfying post-admission practice requirements;
or
- they may qualify as a barrister after passing the Barristers Qualification
Examination and completing the pupillage requirements.
Mandatory continuing
legal education for trainee solicitors and solicitors in their first year of practice
was introduced by theLaw
Society in Hong Kong in 1991. This scheme requires practitioners to attend
a combination of accredited mandatory and optional courses. Developed on the basis
of the Continuing Legal Education Scheme, the Continuing Professional Development
(CPD) Scheme came into effect on 1 January 1998. The CPD Scheme aims to provide
more flexible means for practitioners to chart their own professional development
by the broadening of existing knowledge and skills and the development of new
skills and areas of work. This mandatory scheme applies to all trainee solicitors
and has been extended to all solicitors with practising certificates since 1 January
2003. CPD activities include attendance at courses, taking distance learning courses
and writing articles, books and dissertations, as well as preparation and delivery
of training courses. With effect from November 2004, practising solicitors,
trainee solicitors and registered foreign lawyers are required, by phases, to
undergo courses of risk management education (RME). They are required to complete
a core programme before the expiry of the practice year in which the requirement
first applied to them and thereafter to attend at least three hours of elective
courses each year or, failing that, attend at least six hours of elective courses
within the first and second succeeding practice years. Such RME courses are accredited
with CPD points in accordance with the CPD Guidelines applicable from time to
time. The statutory requirement for implementing a programme of compulsory
legal education known as the Advanced Legal Education Programme (ALE) came into
effect in March 2003. This programme requires all pupil barristers to attend ALE
courses and to obtain a total of 14 ALE points during their twelve months' pupillage.
Through a planned programme of legal education, focussing on advocacy and drafting,
the ALE programme provides an efficient way for pupil barristers to obtain and
improve their skills. The ALE programme comprises core components of advocacy,
professional conduct and ethics, drafting, case preparation and substantive law.
Arbitration
and mediation Information based on the Departmental
publication "Legal System in Hong Kong" printed in 2008 Arbitration
has been a popular method of dispute resolution in the HKSAR for some time. It
is governed by the Arbitration Ordinance (Cap 341), which is based in part on
the UNCITRAL Model Law, the model law drafted by the United Nations Commission
on International Trade Law ("the Model Law"). In 2005, the Department
of Justice established a Working Group on reform of arbitration law. The Working
Group issued a consultation paper incorporating a draft Arbitration Bill in December
2007. The paper recommends that the distinction between domestic and international
arbitrations should be abolished and the Model Law should be adopted as the basis
for arbitration law in Hong Kong. This reform of arbitration law in Hong Kong
will reinforce and promote Hong Kong as a leading centre for international arbitration
and dispute resolution as the Model Law is widely accepted by other jurisdictions
and is familiar to practitioners from civil law as well as common law jurisdictions.
Awards made in the HKSAR can be enforced in more than 120 jurisdictions
which are signatories to the New York Convention on the Recognition and Enforcement
of Foreign Arbitral Awards. The Arbitration Ordinance was amended in January 2000
to give effect to an arrangement made in June 1999 with the Mainland's Supreme
People's Court to put in place a mechanism by which awards made in the two jurisdictions
would be mutually enforceable. The Hong Kong International Arbitration Centre
(HKIAC) was established in 1985 to act as an independent and impartial focus for
the development of all forms of dispute resolution in the HKSAR and Asia-Pacific.
The HKIAC provides information on dispute resolution and arbitrations both in
the HKSAR and overseas. It operates panels of international and local arbitrators,
and maintains lists of mediators. The HKIAC's premises are in Exchange Square
in Central District, where it provides 10 purpose-built hearing and conference
rooms and full support facilities. The number of cases involving the HKIAC has
substantially increased in recent years. It is anticipated that there will be
a further increase in such cases in the future, not only because of the increased
popularity of arbitration and mediation as a means of dispute resolution but also
because of the growth of the HKSAR as a regional dispute resolution centre and
our closer ties with the Mainland. Mediation Mediation
is a dispute resolution process conducted in confidence in which a neutral third
party (the mediator) is engaged by the parties in dispute by consent to facilitate
the parties in arriving at a negotiated settlement of the dispute. One distinct
feature of a first class world city is effective access to justice. However, access
to justice does not mean that civil disputes must necessarily be litigated through
an adversarial process, with apportionment of liability and blame. Mediation,
effectively conducted, can provide a relatively quick and inexpensive procedure,
producing a satisfactory and amicable result, which both parties actively worked
towards and can live with, and which will not destroy an existing relationship.
With these advantages, mediation has become the global trend in the resolution
of disputes. Against this background, the Chief Executive in his October
2007 policy address pledged to develop mediation services in Hong Kong. A cross-sector
Working Group headed by the Secretary for Justice was set up in early 2008 to
look at ways in which mediation can be more effectively and extensively applied
to resolve both commercial disputes and disputes at the community level.
The
legal system in China - The interface between Hong Kong and the Mainland legal
system Information based on the Departmental
publication "Legal System in Hong Kong" printed in 2008 The
legal system in Mainland China is based on the constitution of the People's Republic
of China (the PRC). The highest state organ of the PRC is the National People's
Congress which exercises powers to amend the constitution, to enact and amend
the more important laws, to appoint and remove the most important state officials,
to approve government budgets, to approve national development plans and to supervise
other state organs such as the Standing Committee of the National People's Congress,
the State Council, the Supreme People's Court and the Supreme People's Procuratorate.
The Standing Committee of the National People's Congress exercises powers as listed
in the constitution, such as the power to interpret the constitution and law,
to enact and amend laws and to approve international treaties entered into by
the government. The State Council (the Central People's Government) is the
highest executive organ in the Mainland. Under the State Council, there are various
ministries and commissions responsible for different tasks and administrative
work. The State Council is also responsible for directing and supervising the
work of the local people's governments at various levels. In the Mainland, the
Supreme People's Court, together with lower people's courts, adjudicates cases,
whereas the Supreme People's Procuratorate, together with lower people's procuratorates,
is responsible for approving arrest, instituting and conducting prosecutions,
investigating a number of specific cases provided by law and exercising the power
of legal supervision over the judgments of the people's courts. Laws in
the Mainland are enacted by the National People's Congress and its Standing Committee,
whereas the State Council is authorised to issue administrative regulations. Local
people's congresses may enact local regulations according to their needs, provided
that such regulations do not contradict the constitution, the laws or the administrative
regulations. Ministries and Commissions under the State Council, as well as local
people's governments, may issue rules in implementing laws and administrative
regulations. TheBasic
Law of the HKSAR provides that the common law system shall continue in Hong
Kong, and that the socialist system and policies shall not be practised there.
National laws are not applicable in the HKSAR, except for those listed in Annex
III to the Basic Law, which are confined to those relating to defence and foreign
affairs as well as other matters outside the limits of the autonomy of the HKSAR.
Likewise, the law applicable in the HKSAR, except for the Basic Law and the national
laws listed in Annex III, is not applicable in the Mainland. Under the Basic Law,
the Central People's Government may, after consulting with the government of the
HKSAR, apply to the HKSAR international agreements to which China is a party.
With the authorisation of the Central People's Government, international agreements
to which China is not a party may also be implemented in the HKSAR. Laws
enacted by the legislature of the HKSAR are reported to the Standing Committee
of the National People's Congress for the record. However, the reporting for record
does not affect the entry into force of such laws. The Standing Committee may
return a law so reported, after consulting the Basic Law Committee, on the ground
that the law in question is not in conformity with the provisions of the Basic
Law on matters within the responsibility of the Central Authorities, or with the
provisions on the relationship between the Central Authorities and the HKSAR. Courts
in the HKSAR exercise independent judicial power, including the power of final
adjudication. They are not subject to a superior court in the Mainland. In other
words, judgments of Mainland courts are not binding on the courts of the HKSAR.
Moreover, law enforcement departments of the Mainland cannot exercise any jurisdiction
in the HKSAR.
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