Chief Justice, Members of the Judiciary, Chairman of the Bar Association,
President of the Law Society, Distinguished Guests, Ladies and
- On behalf of the Department of Justice, may I extend our
warmest welcome to all of you here, especially to our guests
from other jurisdictions.
- In Hong Kong, the rule of law is the cornerstone of our legal
system, which in turn is the cornerstone of our society. With
this firmly in mind, I gratefully accepted the appointment as
Secretary for Justice, with humility, courage and determination
to serve without fear or favour.
- The rule of law manifests itself in a multitude of facets. Law
exists in practice. However, it should not only be practised by
the lawyers, the Judges and the Government. More
importantly, the rule of law should be observed and respected
by the community as a whole. It is through our daily lives and
activities that we become testament to the existence of the rule
of law. All of us jointly bear the responsibility to respect,
promote and further the rule of law as a fundamental basis of
- I would like to focus on three points today: the role of the
Department of Justice (the Department) in advising the
Government and the Chief Executive; the Department’s duty to
conduct criminal prosecutions free from interference, and the
independence of the Judiciary.
Advice to Government
- It is the Department’s duty and responsibility to provide honest,
independent and professional advice to the Government on the
legality of its acts and its compliance with the laws. It is the
Government’s role to formulate policy for the good of the
society as a whole. Some policies can be implemented within
the existing legal framework, while others may necessitate new
laws to be enacted.
- In formulating new laws, the Basic Law, being the
constitutional document governing the implementation of the
overarching “ one country, two systems” policy, provides
fundamental principles to be observed. Yet, the drafters of the
Basic Law, including those some would agree to be great legal
minds from common law traditions, could not have foreseen all
specific situations that may arise in the future. The wisdom,
one may say, of such drafting is in the inherent flexibility of the
Basic Law to allow developments over time whilst preserving
the fundamentals that must be observed. The Basic Law
straddles two legal systems in a unitary state – it was
promulgated by a civil law legislature to be applied in a
common law jurisdiction. The Basic Law, like any other law,
is open to different interpretations. This diversity is
augmented by the differences in the approaches to the
understanding and interpretation of laws by the two different
legal traditions. Having said that, this difference, like any
other legal issue, must be resolved through an appreciation of
the ways in which conflict of laws rules and concepts in
comparative law studies should be applied. Exchanges of
views in good faith, and most importantly, mutual
understanding of the reasons for the difference, inform an
objective legal analysis. The pursuit of proper interpretation
will no doubt challenge the greatest of legal minds. With a
common goal to implement a particular policy, a legal solution
can be achieved.
- The second aspect relates to the prosecutorial function of the
Department. Article 63 of the Basic Law guarantees that the
Department of Justice shall control criminal prosecutions, free
from any interference.
- Decisions to prosecute or not, as the case may be, must be
based on an objective and professional assessment of the
available evidence and the law and be in accordance with the
published Prosecution Code. Politics can have no role to play
in such decisions. The legal discussions within the
Department will be conducted free from politics, with
professionalism and importantly, in confidence. Some
decisions are hard to make, but the Department is duty bound
to make decisions that are legally correct and free from any
interference, difficult or unpalatable though they may be.
- A cause, however noble and honourable, must be pursued in
accordance with the law. There are avenues by which views
can be expressed and mechanisms in place for changes to be
introduced. These are the proper means by which a cause can
be pursued legally and with dignity. As the Acting Chief
Justice Chan said in HKSAR v Chow Nok Hang FACC
12/2012, and I quote, “Resorting to violence or threat of
violence or breach of peace in the exercise of this right will not
advance one’s cause.” He continues, “The means to achieve a
legitimate end must not only be peaceful, it must also be lawful.
Violent or unlawful means cannot justify an end however noble.
It may also attract criminal liability.”
- This leads to the third point, an important element of the rule of
law - dispute resolution. The importance of an independent
Judiciary that provides an accessible adjudicative system
ensuring equality before the law, and observing due process cannot be understated. As evidenced in the judgments that
have been rendered, our courts administer justice in full
accordance with the law and evidence before it. Judgments
set out the reasons by which they come to the decisions.
Some may not like the outcome but it does not mean that the
independence of the Judiciary is in anyway compromised. We
have a strong legal fraternity and a strong and independent
Judiciary in which we all take pride. It is my duty to ensure
that the independence of our Judiciary, as enshrined in the
Basic Law, is respected and not arbitrarily attacked or criticised.
I urge the community to take the same stance.
- Some suggest that the rule of law in Hong Kong is under threat.
If it means that it is being tested, I have no qualms with such
suggestions. But, with respect, I cannot agree with
suggestions that our rule of law is in anyway compromised.
- Objective studies by international organisations support the
existence of an independent Judiciary. In the Global
Competitiveness Reports of the World Economic Forum, Hong
Kong’s judicial independence ranked first in Asia for the past
three years. According to the Worldwide Governance
Indicators Project of the World Bank, which provides trends
over longer periods rather than year on year fluctuations only,
Hong Kong’s percentile ranking in rule of law has improved
from 69.9% in 1996 to 93.3% in 20161 over 20 years, or a leap
from a top 70 place to a top 15 place. These statistics suggest
an upward trend, but we must not be complacent and must
continue to strive to be better.
- Whilst we must continue to stand firm to guard and uphold the
rule of law, we must also act responsibly and not utter arbitrary statements that underestimate our rule of law.
- Everyone has a right to express opinions. Educated and
constructive criticisms and opinions drive positive development,
but irresponsible and unprofessional utterances that are
transparently baseless do not.
Arbitration and Mediation
- I turn to look at Hong Kong’s role in international arbitration.
Arbitration resolves some of the most important commercial
and investment disputes internationally with the arbitral awards
enforceable practically universally. It plays an important role
in promoting the rule of law at an international level.
- Hong Kong has a strong arbitration culture, mature arbitration
practice and sophisticated arbitration community, and we are
well placed to further develop our strengths in this area.
Whilst Hong Kong has been ranked the third most preferred
seat of arbitration world-wide2, the competition is keen. Yet it
is competition that inspires advancement. Hong Kong has
clarified the arbitrability of intellectual property rights disputes
by way of the Arbitration (Amendment) Ordinance 2017
effective as at 1 January 2018. Members of the legal
community have also put their heads together with the
information technology sector and are working to develop an
on-line dispute resolution system that will provide an efficient,
affordable and accessible platform for arbitration. This
platform once completed will take Hong Kong to a new
dimension in the provision of dispute resolution services.
- Mediation has the benefit of identifying the common goal, of
focusing on the interests of those concerned in search for a
solution that will be acceptable to them. In the Financial Dispute Resolution Centre, there was an over 80% success rate
in 20163 in mediating financial disputes between investors and
the financial institutions. From statistics produced by the
Judiciary, mediated cases brought before the Court of First
Instance and the District Court have reached a settlement rate
of around 65% in recent years. The Mediation Ordinance and
Apology Ordinance provide a sound legal framework for
mediation to be further developed. In the on-line platform
that I mentioned, on-line mediation is to be developed so as to
provide a comprehensive dispute resolution service.
- In support of our policy on promoting mediation, the West
Kowloon Mediation Centre has been constructed and will come
into operation soon. It is a unique development that is
dedicated to Small Claims Tribunal cases suitable for mediation.
It is envisaged that this will greatly enhance the use and
understanding of mediation.
- In October 2017, Hong Kong held the 2nd UNCITRAL4
Judicial Summit during which views were exchanged amongst
judges and practitioners from the Asia Pacific region. This is
in line with one of the important principles of UNCITRAL, that
of harmonisation of laws and practice in international
commercial transactions. Harmonisation creates a level
playing field and transparency, thereby promoting international
trade and investments. We are actively discussing with
UNCITRAL to make this a regular international event in Hong
- To reinforce the above policy initiative, we have taken up the
role of a convenor in the work of the Friends of the Chair on Strengthening Economic and Legal Infrastructure under the
APEC5 Economic Committee and will organise an APEC
Workshop in March at the margins of the 2018 APEC First
Senior Officials’ meeting on the Use of Modern Technology for
Dispute Resolution and Electronic Agreement Management.
This APEC project, together with the on-line dispute resolution
platform discussed above, creates a synergy that will advance
our strengths in arbitration.
- With the support of the Department, the Hague Conference on
Private International Law is going to hold a global conference
in Hong Kong on 18 - 20 April this year to celebrate its 125th
anniversary. The event will give us a privileged opportunity
to hear from notable experts their views on what private
international law may offer in the modern age with expanding
global interactions, prompted by, for example, China's "Belt
and Road" Initiative.
- Under the “Legal Hub” project, renovation works in the West
Wing of the former Central Government Offices (now renamed
Justice Place) and the former French Mission Building to
provide space for the operation of international, regional and
local law-related organisations are progressing well. The
software, through capacity building, must be further developed
in parallel in the wake of globalisation and the growth of the
Belt and Road Initiative projects.
- The Chief Executive, in her Policy Address stated that the
Government will actively seek to conclude free trade
agreements, investment promotion and protection agreements
and comprehensive avoidance of double taxation agreements
with other economies to further the strengths of Hong Kong’s
position as an international trade, commercial and financial
centre. The Hong Kong - ASEAN6 Free Trade Agreement was signed in November 2017.
- All these show the need for expertise and demand for
practitioners in this area is steadily increasing. A number of
the universities in Hong Kong and the Asian Academy of
International Law have continuously provided training in
topical areas for students, practitioners, Judges and government
officials and will continue to provide a platform for research
and international exchange of views.
Mutual Legal Assistance with the Mainland
- Returning to home, we have completed a number of mutual
legal assistance arrangements with the Mainland. They were
introduced as a result of the developments in society.
Arrangements entered into are implemented locally with the
passage of enabling legislation.
- With increasing cross-border marriages, the Arrangement on
Reciprocal Recognition and Enforcement of Civil Judgments in
Matrimonial and Family Cases was concluded in June 2017.
To implement this Arrangement, the Department is currently
preparing a bill.
- With a growing number of cross-border transactions, the
Arrangement on Mutual Taking of Evidence in Civil and
Commercial Matters was concluded in December 2016 and
took effect on 1 March 2017. Requests for assistance have
been processed enabling litigants to obtain evidence with
- Other arrangements, such as the expansion of the scope of the
arrangement for reciprocal recognition and enforcement of civil
judgments implemented since 2008 will be pursued. These
will protect the interests of Hong Kong’s residents and
businesses through a clear, accessible and efficient legal
- Ladies and Gentlemen, it leaves me to thank Rimsky, my
predecessor, for serving Hong Kong with such dedication,
devotion and good temperament, leaving me a hard act to
follow. I will strive and do my best to serve without fear or
favour in discharging my duties.
- Thank you for your kind attention.
See website of the Worldwide Governance Indicators (http://info.worldbank.org/governance/wgi/#doc
See the 2015 International Arbitration Survey: Improvements and Innovations in International
Arbitration by Queen Mary University of London
See the 2016 Annual Report of the Financial Dispute Resolution Centre (http://www.fdrc.org.hk/en/annualreport/2016/files/download/FDRC_annual_report.pdf
United Nations Commission on International Trade Law.
Asia-Pacific Economic Cooperation.
The Association of Southeast Asian Nations.