Civil Division

Counsel in the 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 & Housing

 

Advisory Unit

 
 
Civil Division counsel (first right) with the Liquor Licensing Board

Counsel of this unit advise various government bureaus and departments on civil law issues of a general nature, including statutory interpretation, administrative law issues and legislative proposals in a wide range of areas, such as:

  • agricultural, fisheries and conservation matters
  • civil aviation, shipping and public transport
  • civil service and disciplinary proceedings
  • education and social welfare
  • election related matters
  • employment related matters
  • matters relating to the police force, fire services, correctional and customs services
  • protection of personal data
  • public health and environmental hygiene
  • recreation and culture

Matters of particular interest on which the unit advised in 2010 and 2011 include:

 

Civil service

  • issues relating to disciplinary proceedings in the civil service arising from recent court decisions

 

Elections

  • legislative amendments regarding the method for the election of the Chief Executive and the formation of the Legislative Council (LegCo) with 10 extra seats in 2012
  • legislative amendments to make changes to electoral and related arrangements, such as allowing a party to an election petition concerning a LegCo, District Council (DC) or Village Representative (VR) election to lodge an appeal directly to the Court of Final Appeal against the determination of the petition by the Court of First Instance, allowing letters sent free of postage by several categories of candidates in a LegCo election and candidates in an Election Committee (EC) subsector election to contain information on certain other candidates, increasing the financial assistance to candidates in DC elections, and providing reliefs for minor errors to candidates under the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554)
  • general electoral matters in the VR, Heung Yee Kuk, DC and EC subsector elections in 2011

 

Employment

  • measures to improve enforcement of Labour Tribunal awards
  • introduction of a statutory minimum wage

 

Social welfare

  • financial assistance for elderly persons who choose to retire on the Mainland

 

Protection of personal data

  • amendments to the Personal Data (Privacy) Ordinance (Cap 486) to regulate the sale of personal data and the use of personal data for direct marketing, to add provisions to the data protection principles, to create new offences and give the Privacy Commissioner various powers to enhance personal data protection, to introduce new exemptions in respect of certain requirements under the Ordinance, and to make technical amendments to improve the operation and presentation of the Ordinance

 

Road traffic and shipping

  • amendment to the Road Traffic Ordinance (Cap 374) to impose stricter controls over driving under the influence of drugs and to confer necessary enforcement powers on the Police to combat this effectively
  • introducing a package of statutory measures to deter driving malpractices and speeding by Public Light Bus (PLB) drivers, and to achieve better control and regulation of the speed of PLBs (eg imposing a maximum speed limit for PLBs and mandating installation of suitable safety equipment on PLBs)
  • major review of the Merchant Shipping (Seafarers) Ordinance (Cap 478) to implement the latest requirements under the Convention on Standards of Training Certification and Watchkeeping for Seafarers 1978, and the Maritime Labour Convention 2006

 

Others

  • issues arising from the Adaptation of Laws (Military References) Bill 2010
  • matters relating to developments in country parks
  • legislative amendments to ban trawling in Hong Kong waters and to pursue sustainable fisheries development in Hong Kong through limiting entry of new fishing vessels, the designation of Fisheries Protection Areas and the restriction of fishing activities with the use or aid of non-fishing vessels
  • issues relating to genetically modified organisms under the Genetically Modified Organisms (Control of Release) Ordinance (Cap 607)
  • licensing matters relating to clubs and guesthouses
  • advising on the electronic system for processing liquor licences, the 2011 public consultation on liquor licensing, and advising on liquor licensing approvals at the Liquor Licensing Board's weekly meetings
  • setting up a new licensing scheme to regulate the operation of private columbaria
  • the government’s “Scheme $6 000” to pay $6 000 to every adult holder of a Hong Kong permanent identity card
  • reciprocal enforcement of matrimonial judgments between Hong Kong and the Mainland
  • matters arising from the subcommittee appointed by the Legislative Council’s House Committee to study issues relating to the power of the Legislative Council to amend subsidiary legislation
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Civil Litigation Unit

Counsel in the Civil Litigation Unit act as instructing solicitors or advocates, as the case may be, in representing the government in the conduct of civil claims and disputes involving the government, and some of the work has been briefed out to private practitioners as may be required.

As in previous years, public law cases have formed a major part of the unit’s work. Some of the more important of these are mentioned under “Notable cases” in the “Highlights of 2010 and 2011” chapter.

   
 
Mr David Chong, SC, Chief Counsel (third left), and Mr Shawn Ho, State Counsel (second left), of the Singapore Attorney-General's Chambers, who participated in an attachment programme organised by Civil Division in February 2011
 

In recent years, one notable phenomenon in public law litigation has been the dramatic increase in the number of cases brought by people who came to Hong Kong and subsequently lodged claims for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Following the decision of the Court of First Instance in FB v Director of Immigration (HCAL 51/2007), a revised administrative screening scheme has been developed by the Administration for handling claims made under the Convention. In October 2009, a dedicated team was set up within the division to provide legal support to deal with Convention-related and other immigration cases, including advice on the enhanced screening procedure, legal representation at oral hearings before tribunals and in judicial review cases before the Court of First Instance and any subsequent appeals.

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, civil service matters, immigration matters, charities and trusts matters, revenue appeals, telecommunications appeals, and general recovery of government debts.

To enhance mutual understanding and to share experience in areas of civil law work common to both jurisdictions, Civil Division organised an attachment programme for members of the Civil Division of the Attorney-General’s Chambers of Singapore in February 2011, who were briefed on the structure, operation and work of the division. The attachment provided a useful opportunity for the exchange of ideas and information on the work of the Civil Divisions in the two jurisdictions.

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Commercial Unit

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 2010 and 2011, counsel in the unit advised on such matters as:

  • the rewrite of the Companies Ordinance (Cap 32)
  • reform of banking and securities and futures legislation, including implementation of the Basel II recommendations, regulation of listed companies and codification of the listing rules, changes to the supervisory framework to enhance investor protection and education, company investigation, investment criteria, establishment of the Financial Dispute Resolution Centre and a scripless securities market.
  • regulation of the Mandatory Provident Fund Schemes (MPF) and related legislative proposals, including the regulation of MPF intermediaries
  • telecommunications, broadcasting and electronic transactions (including the preparation and implementation of legislative proposals on the establishment of the proposed Communications Authority, the consultation on public service broadcasting and the future of RTHK, the proposed Spectrum Policy Framework and proposals concerning licensing and frequency assignment for Broadband Wireless Access service
  • drafting agreements and major project work such as the Disney theme park, the Ocean Park Redevelopment Plan, Shatin Central Link, South Island Line (East), West Island Line, the new cruise terminal facilities and the Hong Kong-Zhuhai-Macao Bridge
  • the establishment of various trust funds and schemes, including the “Trust Fund in Support of Reconstruction in the Sichuan Earthquake Stricken Areas” and the “Community Care Fund”
  • privatisation and the sale of the government’s shares in publicly listed companies
  • public-private partnerships and private sector involvement
  • review of consumer protection legislation
  • the Deposit Protection Scheme (Amendment) Bill
  • government 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 cross-sector competition law, and initiatives in specific sectors such as telecommunications, broadcasting, electronic trade manifests and the auto-fuel industry
  • school service contracts for government, aided and direct subsidy schools
  • development of private hospital services
  • the regulatory functions of government in the West Kowloon Cultural District project
  • the proposed establishment of an independent Insurance Authority
  • proposed legislation to enhance the anti-money laundering regulatory regime in respect of the financial sector, including the preparation of the Prevention of Money Laundering and Terrorist (Financial Institutions) Bill
  • documentation and implementation of Islamic finance initiatives
  • review of the Trustee Ordinance (Cap 29)
  • a number of financial schemes to assist research and development and small and medium enterprises
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Planning, Environment, Lands & Housing Unit

The Planning, Environment, Lands & Housing (PEL&H) Unit has two teams, namely, the Advisory Team and the Litigation Team. Counsel in the PEL&H (Advisory) Team advise the 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, government rent and declaration of monuments, including a significant number of infrastructure projects, policy initiatives and legislative proposals.

 

PEL&H (Advisory) Team

In 2010 and 2011, significant matters and projects advised on by the team included:

 

Town planning

  • preparation of Development Permission Area plans under the Town Planning Ordinance (Cap 131) to protect Country Park enclaves from incompatible developments

 

Environmental protection

  • use of electric vehicles in Hong Kong
  • extension of the environmental levy scheme on plastic shopping bags
  • prohibition against idling vehicles
  • review of air quality objectives

 

Land and buildings

  • post-enactment review and proposed amendments to the Land Titles Ordinance (Cap 585)
  • land-related commercial agreements and tender documents relating to the Kai Tak, Lion Rock, Shing Mun and Tseung Kwan O Tunnels
  • proposals for mandatory buildings and windows inspection schemes
  • introduction of the Special Stamp Duty to deter speculative activities in the property market
  • proposal to introduce legislation to regulate sales of first-hand residential properties
  • measures and policies to address community concerns over the way in which the government’s concessionary policy to allow private buildings to increase floor area to include green and amenity features has been used by developers

 

Heritage conservation

  • implementation of the “Revitalisation of Industrial Buildings” scheme
  • declaration of important historical buildings, including Ho Tung Garden, St Stephen’s College and King’s College

 

Major infrastructure projects

One of the major projects the PEL&H (Advisory) Team advised on is a new cruise terminal (including two berths) at the former Kai Tak runway. Site formation works commenced in November 2009 and the first berth is expected to come into operation in mid-2013. The second berth will be commissioned in 2014. The cruise terminal building works contract (including the customs, immigration and health quarantine facilities and other supporting facilities) commenced in May 2010. The terminal building is expected to come into operation in mid-2013. The team also assists the Tourism Commission in the tender process to procure a tenancy agreement for operation and management of a certain portion of the new cruise terminal.

Other major projects include the Express Rail Link, the Hong Kong-Zhuhai-Macao Bridge, the proposed development at Lok Ma Chau Loop, the proposed Shatin-Central Link and the Liantang / Heung Yuen Wai Border Crossing Facilities.

A model of the new cruise terminal

 

PEL&H (Litigation) Team

Counsel in the PEL&H (Litigation) Team act as instructing solicitors or advocates, as the case may be, in representing the government in the conduct of civil claims and disputes involving the government, and some of the work has been briefed out to private practitioners as may be required. A wide variety of litigation cases fall within the purview of the team, which include both public law cases and private law cases, and at different court levels and at the tribunal level, relating to land, town planning, building, environment, housing, heritage conservation, rating and government rent, land resumption and other types of statutory compensation claims. The team also handles arbitration cases (other than those related to construction works).

In 2010 and 2011, the PEL&H (Litigation) Team handled a wide variety of litigation cases, including:

  • town planning appeal cases and related judicial reviews
  • building appeal cases and related judicial reviews
  • land dispute cases and related judicial reviews
  • environmental law related judicial reviews
  • environmental protection appeals, such as the Air Pollution Control Appeal Board appeal cases and the Noise Control Appeal Board appeal cases
  • rating and government rent appeal cases
  • government rent exemption cases
  • statutory compensation cases (including land resumption cases)
  • arbitration cases
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  Christina Cheung Kam-wai
Principal Government Counsel, Civil Division
   
   

Christina Cheung graduated from the University of Keele, UK with a joint degree in law and economics in 1986. Having completed her training in the UK, Christina stayed there to practise as a solicitor in private practice until she returned to Hong Kong to join the then Attorney General’s Chambers in 1995 as a Senior Crown Counsel.

Christina’s experience lies mainly in civil law matters and she has been in her present posting in the Civil Litigation Unit of the Civil Division since joining the department. She was promoted to Deputy Principal Government Counsel in 2001 and Principal Government Counsel in 2008. Christina is presently in charge of the Civil Litigation Unit which is responsible for all civil proceedings involving government and statutory bodies. The unit handles a wide range of civil litigation and one of its main areas of work is judicial review proceedings. The unit has been kept very busy with the surge in judicial review proceedings in recent years, coupled with the growth in complexity and diversity of legal challenges against government decisions, both in terms of their subject matter and the arguments involved. Looking ahead, Christina expects that the unit’s workload will increase as judicial challenges are likely to continue to grow in a free society like Hong Kong. In a changing legal environment, Christina considers continuing training vital for the professional development of government counsel to meet the demands of society and to enable them to successfully discharge their professional duties.

Despite the pressure, Christina considers her work highly meaningful “as many of the court’s decisions in cases handled by the unit have significant implications for the development of the HKSAR’s rule of law and the administration of justice generally.”

 
   

 

   
  Beverly Yan Man-wai
Deputy Principal Government Counsel, Civil Division
   
   

Beverly Yan graduated from the University of Hong Kong and joined the Commercial Unit as a Government Counsel in 1995 after several years of private practice in commercial and company matters.

“The decision to join the department wasn’t a hard one. After working in a law firm for a few years, I wanted to practise law in a place where costs and returns in money terms weren’t the primary concern. I thank the Lord that this was and still is a correct decision.”

Beverly was promoted to Senior Government Counsel in 1996. Her first challenging task was advising the government on the enactment of the Securities and Futures Ordinance. “I was the first port of call and co-ordinator within the department for most of the time and had to answer on the spot all legal questions from the Bills Committee during their over 12-month scrutiny of the Bill,” she says. “Through this exercise, thanks to all the expert advice and input from my colleagues in other units and divisions, I’ve learnt a lot about the Basic Law, human rights and legal policy - and even sharpened my fading memory of criminal law and administrative law!”

In 2010, Beverly was promoted to Deputy Principal Government Counsel and now heads team II of the Commercial Unit which handles company, securities, banking, trusts, mandatory provident funds, insurance, transport, government procurement of services and general commercial work. “I enjoy working with counsel in teams. It’s often a mutual learning experience. We all become wiser and the client is no doubt better advised.”

 
   

 

   
  Jenny Fung Mei-fung
Assistant Principal Government Counsel, Civil Division
   
   

Jenny Fung joined the Civil Service in 1987 as an Assistant Registrar in the Trade Marks Registry of the Registrar General’s Department (now the Intellectual Property Department). In 1990, she won a Government Legal Scholarship to study for the PCLL at the University of Hong Kong and joined the then Attorney General’s Chambers as a trainee solicitor.

On qualifying as a solicitor in 1993, Jenny was appointed as a Crown Counsel and spent her first year in the Prosecutions Division. In 1994, Jenny moved to the Civil Division where she has worked exclusively in the Civil Litigation Unit, apart from a short period at the Planning, Environment, Lands & Housing (Advisory) Unit. Jenny has handled a wide variety of cases involving administrative law, personal injuries, tax, town planning, and environmental law. Currently, she is acting in the post of Deputy Principal Government Counsel where she heads a team of counsel specialising in commercial litigation.

Over the years, Jenny has contributed substantially to training. She has acted as principal and mentor to legal trainees in the department and has given careers talks about the legal trainee scheme to PCLL students at Hong Kong universities. Jenny has been an external examiner for the PCLL Civil Advocacy examination of the University of Hong Kong since 1997 and recently conducted a seminar on administrative law for Senior Administrative Officers in the government.

In March 2010, Jenny led a delegation to Guangzhou to present a paper on “The Administrative Disputes Resolution System Adopted by the Hong Kong Government” at an academic conference involving delegates from the Mainland, Taiwan, Macao and Hong Kong. In the same year, in a bid to improve herself, she qualified as an accredited mediator with the Centre for Effective Dispute Resolution.

Jenny is keen to serve the community and has served on the Free Legal Advice Scheme organised by the Duty Lawyer and Free Legal Advice Scheme since 1993.

“I find litigation work both dynamic and intellectually challenging. I have a lot of satisfaction in being able to apply my legal knowledge to solve the problems at work. I also find it gratifying that I am able to use my legal knowledge to help people.”

 
   

 

   
  Siu Wai-leong
Senior Law Clerk I, Civil Division
   
   

Siu Wai-leong joined the Civil Service in 1982 as a Clerical Officer II (now called Assistant Clerical Officer). His first posting was to the Law Drafting Division, where his major duty was to proof-read draft legislation, before moving to the District Court Unit of Prosecutions Division at the end of 1982.

Wai-leong became a Law Clerk in 1984 and was the clerk in-charge of the High Court Unit (now called the Court of First Instance Unit). In 1989, Wai-leong was promoted to Senior Law Clerk II and was transferred to the Appeals Unit in Prosecutions Division in 2001. A move to Civil Division came at the end of that year, when Wai-leong was posted to the Debt Collection Unit. He was promoted to Senior Law Clerk I in 2005, having acted at rank since 2002. His major duties now include conducting hearings and trials in the Small Claims Tribunal.

Wai-leong finished his Higher Diploma in Legal Studies at City Polytechnic (now City University) in 1992 and obtained a BSc (Business) degree from the University of London in 2008.

"It’s a gift for me that I’ve been able to work and learn in these three major divisions”, he says. “I’ve been working in the department for almost 30 years. The life in the department is the most important part of my life."

 
   

 

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