Litigation is a legal process by which the disputes between the parties to the litigation are adjudicated by a judge/judicial officer sitting in a court or tribunal. The rights of access to the courts and to seek judicial remedies are fundamental rights enjoyed by Hong Kong people and are protected under the Basic Law and the Hong Kong Bill of Rights Ordinance (Chapter 383).
Civil proceedings may be instituted by any persons against an individual, a corporation or the government on private law grounds. Civil proceedings may also be instituted to challenge the constitutionality of a piece of legislation or any statutory provision or the legality of any act, decision or policy of the government by way of judicial review on public law grounds.
The legal system in Hong Kong is based on common law. The litigation process is generally an adversarial one during which opposing parties act as adversaries seeking to convince the Court or tribunal that their version of events or their legal submissions should prevail over those of the other side.
Private law applies to civil proceedings instituted against an individual, a corporation or the government in matters concerning rights under the law of contract, tort, property, etc. Private law remedies generally available include:
Public law regulates, among others, the relationships between the government (including public authorities) and individuals. By judicial review proceedings, the Court of First Instance may review the exercise of any public decision-making power or any refusal to exercise such power. Generally speaking, judicial review is concerned with the legality rather than the merits of the impugned decision and the Court will not substitute its opinion.
There are three traditional grounds for judicial review; namely, (a) illegality; (b) irrationality; and (c) procedural impropriety.
If an applicant succeeds in his application for judicial review, the Court has the discretionary power to grant a form of final relief appropriate to the circumstances, including an order of mandamus (to perform an act), prohibition or certiorari (to bring up and quash a decision), an injunction, a declaration (as to legal rights) or an award of damages, as the case may be.
This Department published “The Judge Over Your Shoulder – A Guide to Judicial Review for Administrators” (3rd Edition) in May 2019. It serves as a general reference for understanding judicial review proceedings. Please click here.
Civil procedures are mostly governed by legislation including the High Court Ordinance and Rules of the High Court (Chapter 4 and 4A), and the District Court Ordinance and Rules of the District Court (Chapter 336 and 336H). Substantial amendments thereto came into force in 2009, implementing the recommendations set out in the final report of the Chief Justice’s working party on civil justice reform (2004), which were made after lengthy and detailed consideration and wide consultation of stakeholders.
The underlying objectives of the Court Rules, as amended, are to increase the cost-effectiveness of court practices and procedures, to ensure expeditious case disposal, to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings, and to facilitate settlement of disputes, etc. The Courts are obliged to manage cases actively. Active judicial case management includes:
Concerning reciprocal enforcement of judgments between the Hong Kong Special Administrative Region and other jurisdictions, please click here.
The Courts follow the doctrine of precedents by which a lower Court is bound to follow the ratio decidendi (i.e. the legal precept applied by the Court in resolving the issues before the Court) of a judgment by a superior Court. Court decisions become part of the common law of Hong Kong. Upon the resumption of the exercise of sovereignty over Hong Kong by the People’s Republic of China in 1997, the source of common law available to Hong Kong is no longer limited to English Court decisions or common law as the Basic Law provides that Hong Kong Courts may refer to precedents of other common law jurisdictions. Subject to Court’s directions or orders otherwise, Court decisions are generally made public and accessible online via the Judiciary’s website at https://www.judiciary.hk/en/judgments_legal_reference/judgments.html. In addition, this Department has made available in this website “Notable Judicial Judgments for the Past 12 Months” and “Summaries of Notable Judgments” for easy reference. Please click here.
Subject to relevant law and procedures, appeals from decisions of the Court of First Instance in civil proceedings can be brought to the Court of Appeal and, subject to leave, the Court of Final Appeal, which is the apex of the Court system. The Court of Final Appeal is vested with the “power of final adjudication” by Article 82 of the Basic Law. For an overview of the Court of Final Appeal, how cases come before it, its distinctive Court procedures, or a brief history of the Court of Final Appeal building, please click on the following link: https://www.hkcfa.hk/en/home/index.html.
In addition to the Court system in Hong Kong, a number of boards and tribunals are set up under various statutes to provide redress on areas affecting the livelihood or businesses of individuals/corporations, for instance, licensing matters, tax appeals and town planning issues. These boards and tribunals operate under the relevant governing legislative provisions which also provide for the specific rules and procedures. These bodies may be constituted by members drawn from the community as opposed to professional judges, and serve to resolve issues in an expeditious and less expensive manner. Examples are: Administrative Appeals Board, Municipal Services Appeal Board, the Appeal Tribunal (Buildings Ordinance), etc.
In line with the public policy to ensure access to justice, the Legal Aid Department provides legal aid to any person who has reasonable grounds for pursuing or defending a legal action but would otherwise be prevented from doing so because of a lack of means. Generally speaking, legal aid is available in both civil and criminal proceedings subject to a means and merits test and except for certain excluded proceedings. Eligible persons are provided with legal aid either free or, depending on their financial circumstances, upon payment of a graduated contribution. For details, please visit the website of the Legal Aid Department by clicking on the following link: https://www.lad.gov.hk/index.html.
Duty Lawyer Scheme (http://www.dutylawyer.org.hk/index.asp)
The Duty Lawyer Scheme generally provides legal representation by qualified lawyers in private practice to eligible defendants appearing in all Magistrates’ Courts and Juvenile Courts.
Free Legal Advice Scheme (http://www.dutylawyer.org.hk/en/free/free.asp)
The Free Legal Advice Scheme provides preliminary one-off legal advice to members of the public as to their legal position in genuine cases. Members of the public who want to seek free legal advice could make an appointment through the enquiry centres operated by the Home Affairs Department and other referral agencies.
Tel-Law Scheme (http://www.dutylawyer.org.hk/en/tellaw/tel_law.asp)
The Tel-Law Scheme provides recorded legal information on a wide range of legal topics through telephone, including (1) family law; (2) land law, landlord and tenant; (3) criminal law; (4) employment law, etc.
Legal Assistance Scheme for Convention Against Torture & Non-Refoulement Claims (http://www.dutylawyer.org.hk/en/torture/torture.asp)
This scheme provides legal assistance to claimants who have made claims for non-refoulement.
Pilot Scheme for Provision of Publicly-funded Legal Assistance for Non-refoulement Claimants
This pilot scheme, under the Security Bureau, is operated concurrently to provide publicly-funded legal assistance to non-refoulement claimants, including accompanying the claimant to attend the screening interview(s) conducted by the Immigration Department.
The Hong Kong Bar Association (https://www.hkba.org/content/bar-free-legal-services-scheme)
The Hong Kong Bar Association administers the Bar Free Legal Service Scheme to provide free legal advice and representation in cases where an applicant, whose application to the Legal Aid Department has been rejected, is unable to afford legal assistance, and the case is thought to be one where assistance should be given.
The Law Society of Hong Kong (https://www.hklawsoc.org.hk/pub_e/probono/)
Also, the Law Society of Hong Kong encourages their members to provide pro bono services through their “Free Legal Helpline 8200 8002”; Free Legal Consultation Service; and Free Legal Advice on Building Management in collaboration with the Home Affairs Department.