Civil Division


The Civil Division has a major role in providing legal advice on a wide range of legal issues on civil matters to all Government bureaus and departments. The division also represents the Government in the conduct of all civil claims and disputes involving the Government.

The Civil Division comprises four major units:

Advisory

Civil Litigation

Commercial

Planning, Environment, Lands and Housing


Advisory

Counsel of this unit provide advice on demand to various Government bureaus and departments on civil law issues of a general nature, such as:

civil aviation, shipping and public transport

civil service and disciplinary proceedings

education and social welfare

election related matters

electronic transactions related matters

employment

Hong Kong Police Force

immigration

protection of personal data

public finance, inland revenue and customs and excise

public health and environmental hygiene

recreation and culture



Civil Division counsel advised on the co-location of immigration and customs clearance facilities in Shenzhen Bay Port.
Matters of particular interest on which the unit advised in 2006 and 2007 included heritage conservation such as the preservation of Queen's Pier, preparation for the District Councils and Legislative Council elections, the establishment of a centralised poultry slaughtering plant, the prohibition of the import of eggs containing Sudan Red dye, the control of food safety, the measures to combat avian influenza, the personalised vehicle registration scheme, the co-location of immigration and customs clearance facilities in Shenzhen, measures to deal with the influx of Mainland women giving birth in Hong Kong, the extension of the smoking ban to all indoor areas/working places, and (following the decision of the Court of Final Appeal in Sakthevel Prabakar in June 2004) advising on claims made under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.




Civil Litigation

The division represents the Government in the conduct of all civil claims and disputes involving the Government. Counsel in the Civil Litigation Unit act as solicitors and barristers in relation to such litigation, though some work is briefed out to private practitioners as may be required.

As in previous years, public law cases have formed a major part of the division's litigation work. Some of the more important of these are mentioned under "Notable Cases" in the "Highlights of 2006 and 2007" chapter.

During 2007, the division assisted the Commission appointed by the Chief Executive in Council under the Commissions of Inquiry Ordinance (Cap 86) to inquire into certain allegations relating to the Hong Kong Institute of Education, including representing a number of Government witnesses who gave evidence before the Commission. The substantive hearing of the Inquiry began on 29 March 2007 and, after a total of 35 days, concluded on 6 June 2007. The Commission issued a report on its findings and conclusions to the Chief Executive on 20 June 2007.

The division has worked on a number of important death inquests in 2006 and 2007. These included the inquest into the death of two police officers (one of whom was an off-duty police officer and also a suspect) in a shooting incident in a pedestrian subway in Tsim Sha Tsui on 17 March 2006. The hearing lasted from February to April 2007. Another inquest was held in May 2007 into the death of a hawker who drowned in a river in Tin Shui Wai on 26 June 2006. The death inquest into a gas explosion in Wai King Building at Ngau Tau Kok on 11 April 2006 which led to two fatalities and a number of injuries took place in June 2007. In all these inquests, the division acted for the relevant Government departments.


A delegation from the Department of Justice and the Immigration Department visits the Central London Asylum Team in London (March 2007).
In June 2007, the first case was referred by the Financial Secretary to the newly established Market Misconduct Tribunal (MMT). The accused parties in that case, which concerns alleged market misconduct in relation to Hong Kong listed securities, are seeking a judicial review of preliminary rulings of the MMT in Cheeroll Limited and Sun Hung Kai Investment Services Limited v MMT and Financial Secretary and Chau Chin Hung and Cheung Sau Lin Connie v MMT and Financial Secretary. The points in issue concern the nature of proceedings before the MMT, the applicable standard of proof and the admissibility of compelled evidence. The division is acting for the Financial Secretary in the judicial review proceedings.

Apart from public law litigation, and in addition to the type of cases already referred to, the Civil Litigation Unit handles a wide spectrum of other civil litigation matters on behalf of the Government, including personal injury cases, charities and trusts matters, revenue appeals, telecommunications appeals, and general recovery of Government debts.




Commercial

Work on commercial law is generated by the Government's own commercial requirements, by the Government's regulation of utilities, franchisees and licensees, and by certain commercial services provided to the community. During 2006 and 2007, counsel in the unit advised on such matters as:

the rewrite of the Companies Ordinance

reform of banking and securities and futures legislation, including the relationship between regulatory tiers

regulation of utilities under the Schemes of Control and related legislative proposals

regulation of the Mandatory Provident Fund Schemes and related legislative proposals

telecommunications, broadcasting and electronic transactions (including the preparation and implementation of legislative proposals on unsolicited electronic messages and the establishment of the proposed Communications Authority)

the merger of the KCRC and the MTRCL


The ceremony to mark the merger between the KCRC and the MTRC (December 2007) (Photo reproduced by courtesy of MTRC).
drafting and advising upon agreements and major project work such as the Disney theme park, the West Kowloon Cultural District, the International Exhibition Centre at Chek Lap Kok, the new cruise terminal facilities and the Hong Kong-Zhuhai-Macau Bridge

the establishment of various trust funds and schemes

documentation, rules and related legal advice on the Capital Investment Entrant Scheme (Immigration)

public private partnerships and private sector involvement

project financing of film production

bank mergers and deposit protection

Governments procurement of goods and services and preparation of tender documents/contracts

a number of major computer contracts, including in some cases their termination

general competition policy in Hong Kong including the proposed introduction of a new competition law and anti-competition initiatives in specific sectors such as in telecommunications, broadcasting, electronic trade manifests and the auto-fuel industry

school service contracts for Government, aided and direct subsidy schools

advising on, and negotiating, a number of important contracts, such as that in relation to the ITU Telecoms World 2006

advising on the regulation of digital television services in conjunction with, and in succession to, analogue television services

In April 2007 the Commercial Unit began publishing a quarterly newsletter, the "CU Review", to be distributed to all Government bureaus and departments.


The editorial Board and the support team of the "CU Review".

The Commercial Unit publishes a quarterly newsletter, the "CU Review"




Planning, Environment, Lands and Housing

Counsel in the advisory team of the Planning, Environment, Lands and Housing Unit advise Government on a wide range of matters relating to town planning, environmental protection and control, lands, regulatory control of building operations and building management, rating and Government rent. Counsel also advise on a significant number of infrastructure projects involving resumption of land, reclamation of the foreshore and sea-bed, railway schemes, town planning and related compensation issues. In addition, counsel advise on legislative proposals relating to environmental protection and control of building works.

In 2006 and 2007, significant planning, environmental and land matters advised on by the team included:

proposals to amend the Air Pollution Control Ordinance (Cap. 311) to provide for emission caps and emission trading

major public projects such as the West Island Line, the Express Rail Link, the Wan Chai Development Phase II, the Central Reclamation Phase III and the Tamar Development

amendments to the Outline Zoning Plans prepared by the Town Planning Board under the Town Planning Ordinance (Cap. 131)

proposals to amend the Land Registration Ordinance

amendments to the Building Management Ordinance

co-location of immigration and customs facilities in Shenzhen

proposed development at south-east Kowloon, including a new cruise terminal at the former Kai Tak Airport runway

heritage conservation projects affecting Central Police Station, Star Ferry Pier and Queen’s Pier

the proposed Hong Kong-Zhuhai-Macao Bridge


Central Police Station has been included in a heritage conservation project.
land-related commercial agreements and tender documents, such as the Kowloon-Canton Railway Corporation East Rail Extension, airport tunnel, cross-harbour tunnel and Tsing Sha Control area

proposals for mandatory buildings and windows inspection schemes

In 2006 and 2007, the unit's litigation team handled a wide variety of litigation cases, including:

town planning appeal cases

building appeal cases

Government rent and rating appeal cases

judicial reviews arising from the above cases

statutory compensation cases (including land resumption cases)

land dispute cases

international child abduction cases

arbitration


Significant judicial review proceedings in which counsel in the litigation team represented the Government included challenges to the decision of the Commissioner of Rating and Valuation to withdraw holding over orders in respect of payment of Government rent, to the constitutionality of sections 7(2) and 17 of the Limitation Ordinance (Cap. 347), and to the decision of the then Secretary for Home Affairs not to declare Queen's Pier as a monument. Other judicial review proceedings included those relating to Town Planning Board decisions, lease modifications and early lease renewal.


Civil Division counsel attend the Mediation Workshop organised by the division at the Hong Kong International Arbitration Centre (May 2007).
The litigation team was also involved in a number of other high-profile cases, including the writ action taken out by Fairland Overseas Development Company Limited in its dispute over the use by vehicles longer than seven metres of Fairview Park Boulevard. The team also handled various Government rent exemption cases (including the case of Tang Sing Sheng v Director of Lands which was heard and decided by the Court of Appeal in May 2007) and a number of Lands Tribunal referrals on the assessment of compensation of properties resumed for, or adversely affected by, various infrastructure projects.




Simon Lee Pak-sing, Principal Government Counsel,
Civil Division
Simon Lee graduated with an honours degree in psychology from the University of Hull in 1981 before studying law at the College of Law in England. He won a Government legal training scholarship in 1982 and served his two years articles with the then Legal Department.

Simon was admitted as a solicitor in 1986 and joined the Lands & Works Unit of the Civil Division as a Crown Counsel. He was promoted to Senior Crown Counsel in 1989. Apart from a brief period with the Commercial Crime Unit of the Prosecutions Division in 1992/1993, Simon has worked exclusively on civil law matters. Between 1995 and 2003, Simon was an Assistant Director of Housing in charge of the Legal Advice Division of the Housing Department where his duties were to provide legal advice and legal services to the Hong Kong Housing Authority.

Simon was promoted to Principal Government Counsel in 2004 and now heads the Planning, Environment, Lands & Housing Unit. "My work relates to many livelihood issues with which people are increasingly concerned, such as pollution, heritage conservation, housing and town planning. The work is challenging and demanding but fulfilling," says Simon.

Simon is also involved in promoting the use of mediation to resolve disputes. "Mediation, being consensual and non-adversarial, is an effective dispute resolution process," he says. "Without the parties taking their disputes to the courts, the wider use of mediation can reduce the workload of our Judiciary and promote social harmony."


Joyce Chan Pui-shan, Deputy Principal Government Counsel,
Civil Division
Joyce Chan graduated from the University of Hong Kong and subsequently obtained an LLM with merit from King's College London. After working in private practice for three years, Joyce joined the then Legal Department in 1996 as a Crown Counsel in the Civil Division's Civil Litigation Unit where she was responsible for representing the Government in public law litigation and civil disputes before different courts and tribunals. Joyce has undertaken a wide range of civil litigation work and handled a number of important court cases since then, including the landmark right of abode case of Ng Siu Tung and Others v Director of Immigration, the Nina Tower case and the Standby Allowance claims lodged by over 3,600 Correctional Services Department Officers.

Joyce was promoted to Senior Government Counsel in 1998 and Deputy Principal Government Counsel in 2006, the same year she received a departmental commendation for consistent outstanding performance. Joyce is in charge of the Planning, Environment, Lands & Housing Unit's litigation team which represents the Government in a wide range of civil litigation cases, including those relating to the unit's area of work.

Joyce finds civil litigation work both challenging and enjoyable. "I thoroughly enjoyed working in private practice," she says, "but I've no doubt that my decision to join the Government was absolutely correct. Handling civil litigation work for the Government has given me a great deal of job satisfaction and is, to me, especially meaningful because I can apply my professional knowledge and litigation skills in serving the Hong Kong community. I'm proud to be a member of the Department of Justice and part of a professional team which plays an important role in maintaining the rule of law in Hong Kong."


Florence Ling Ka-wah, Senior Government Counsel, Civil Division
Florence Ling was admitted as a solicitor in 1996 and worked as an Associate in the Communications and Information Technology practice group of the Commercial Department at Baker & McKenzie. She joined the department in 1997 as a Government Counsel, and was promoted to Senior Government Counsel in 2002.

Florence has been a member of Civil Division's Advisory I Unit since she joined the department, working on a wide range of civil law matters, including civil aviation, road traffic and maritime matters. Florence also focuses on legal issues relating to personal data privacy, communications and information technology.

Florence believes an important role played by government lawyers is to assist Government bureaus and departments ensure that the rule of law is upheld in Government acts and decisions. "The rule of law is one of the Hong Kong values we hold most dear," she says. "I'm proud to see our department's continuing commitment to maintain it - not only in notable court cases and legislative programmes, but also in the legal advice we give every day to Government bureaus and departments in their policy formulation and implementation."

Florence is happy with her career in public law practice. "It gives me the opportunity to serve the community by integrating law into society," she says.