Information based on the Departmental publication "Legal System in Hong Kong" printed in 2008; please refer to the websites concerned, as provided, for more detailed or latest information regarding the issues involved.
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.
TheBasic 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.
Information based on the Departmental publication "Legal System in Hong Kong" printed in 2008; please refer to the websites concerned, as provided, for more detailed or latest information regarding the issues involved.
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).
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.
Information based on the Departmental publication "Legal System in Hong Kong" printed in 2008; please refer to the websites concerned, as provided, for more detailed or latest information regarding the issues involved.
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:
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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 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.
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.
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.
The four principal judicial functions of the Lands Tribunal are to:
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:
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.
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:
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.
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.
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 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 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 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:
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.
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.
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.
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.
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.
Legal Advisory and Conveyancing Office
The Legal Advisory and Conveyancing Office is part of theLands Department. It is responsible for:
The main functions of theLand Registry are to:
Intellectual Property Department
TheIntellectual Property Department has the following principal functions:
Official Receiver's Office
The principal functions of theOfficial Receiver's Office are to:
The main functions of theCompanies Registry are to:
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:
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 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 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 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.