Sino - Hong Kong Legal System

INTRODUCTION TO
HONG KONG LEGAL SYSTEM
1
1 – What law is about
2
1.1 What is Law?
1.1.1 Meaning of law
Law is used to describe rules. It bears
two distinctive features:
(1) a law is created by a certain authority;
and
(2) if a law is broken, the authority will
enforce the law.
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1.1 What is Law?
1.1.2 Classification of law
Law may be classified in the following ways:-
A. Criminal law and civil law
(1) Target behaviors
Criminal law is the law that pertains to
certain kinds of wrongdoings or offences, e.g.
murder, theft etc., of which the state or
community strongly disapproves, and the law
is to punish the wrongdoer.
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1.1 What is Law?
Civil law is concerned with individuals’
rights and their duties towards each other,
and is aimed at settling disputes between
parties by giving a remedy to the victim of
the wrongdoing but not by punishing the
wrongdoer.
Civil law may be subdivided into different
branches of law according to the type of
legal problems they aim to resolve.
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1.1 What is Law?
E.g.
• Contract law
• Tort Law
• Company law
• Employment Law
• Family law
• Property law
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1.1 What is Law?
(2) Standard of proof
The standard of proof refers to the strength
of the evidence a party has to adduce in
order to succeed in the claim.
The court requires a much higher standard
of proof in criminal cases than in civil cases.
• Criminal cases--prove beyond a reasonable
doubt.
• Civil cases--prove on the balance of
probabilities.
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1.1 What is Law?
B. Public law and private law
• Public law
--deal with the state and the relations of the state
with the community or public.
--E.g. Criminal law, Constitutional law,
Administrative law
• Civil law
--also referred to as private law as opposed to
public law.
--E.g. Contract law, Tort Law, Company law,
Employment law, Family law, etc.
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1.1 What is Law?
C. National and International Law
• National law
-- law applies within a nation.
-- also is called municipal law.
• International law
-- law governs the relations between
nations.
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1.1 What is Law?
D. Common Law and Civil Law
• Common law system is a legal system
based primarily on court-made rules or
precedents.
Common law countries or area:
HK, UK, Australia, Canada, India, Ireland,
New Zealand, US, Singapore, etc.
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1.1 What is Law?
• Civil law system is a legal system derived
from Roman and Germanic practice and
set out in national law codes.
Civil law countries: Germany, France,
Netherlands, Belgium, Poland, Spain,
Portugal, Hungary, Greece, Switzerland,
Yugoslavia, Latin America, Indonesia,
Japan, China, South Korea, etc.
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1.1 What is Law?
E. Common Law and Equity
• Common law—a body of the case law made by
judges (under the ‘doctrine of precedent’). Legal
principles laid down in a judgment are binding
on lower courts in subsequent cases. However,
when the legal principles laid down in previous
cases are not applicable (e.g. when the material
facts are different), the judge can lay down a
new legal principle that will be binding on lower
courts in future cases.
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1.1 What is Law?
• Equity-- a body of rules of conscience. They are
applied to remedy the injustice found in common
law courts.
Common law in its early time had deficiencies. It
was rigid and strictly technical and could result in
harsh and unfair judgments.
The rules of equity allowed the judge to look at
the merits of the case and at who was most
deserving of fair play and justice.
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1.1 What is Law?
F. Common Law and Legislation
• Common law is the decisions of the courts in
resolving the disputes that come before them. It
is also called “case law”.
• Legislation is passed by the legislature or made
by government authorities under powers
delegated to them. In HKSAR, it includes
primary legislation in the form of ordinances, and
secondary legislation e.g. rules, regulations and
bylaws.
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1.2 What is a Legal System?
• Every country has a different legal system.
Some characteristics common to all legal
systems, which are:
(1) A legal system comprises the ideologies that
that system has embraced e.g. “rule of law”.
(2) A legal system can be thought of as a
collection of laws. In HK, our laws are
collected in the form of legislation e.g.
ordinances, and cases.
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(3) It is a system of government which
establishes processes for making and
imposing the law.
It also includes the institutions and agencies,
e.g. the legislature, the courts and the
Department of Justice, that have been
established to operate the system.
It also includes the personnel who comprise
these institutions e.g. judges and lawyers.
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• Before 1 July, 1997 Hong Kong adopts
Anglo-American Common Law System.
Although Hong Kong became a region of
People’s Republic of China, which is a
Civil Law System, after 1 July 1997, it has
a separate legal system according to the
Basic Law on the basis on the notion of
“one country, two systems”.
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1.3 Rule of law
• ‘Rule of law’
--refers to a system in which certain fundamental
principles are rooted in a legal system to ensure
that individuals are not subject to the arbitrary
exercise of powers, if any, by the government.
That is to say, all governmental powers are
derived from the law, and the law is used not
only to regulate individuals’ behavior but also to
control the exercise of power by the government.
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2 – Where Law
Comes From
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2.1 Sources of Hong Kong Law
• From the time Great Britain forced the
cession of Hong Kong in 1842 under
the Treaty of Nanjing until Hong Kong
was returned to China in the capacity
of a Special Administrative Region
(HKSAR) on 1 July 1997, the
substance of Hong Kong law was the
same as that of English law.
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• The sources of Hong Kong law before

the handover are mainly deriving from
the following:
1. Common law,
2. Rules of equity,
3. Legislation, and
4. Customary law.
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• The Basic Law was enacted by the
National People’s Congress in accordance
with the Constitution of PRC.
• It is akin to a mini-constitution for the
HKSAR.
• It provides the essential framework of
rules as regards the social, legal and
political system of the HKSAR, under the
principle of ‘one country, two systems’.
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• The articles in the Basic Law that are of the most
relevance to the legal system of HKSAR are:
• Article 160
Upon the establishment of the HKSAR, the laws
previously in force in HK shall be adopted as
laws of the Region except for those which the
Standing Committee of the National People’s
Congress declares to be in contravention of this
Law.
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• Article 8 :
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 this (Basic) Law, and
subject to any amendment by the legislature of
the Hong Kong Special Administrative Region.
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• Article 18:
The laws in force in the Hong Kong Special
Administrative Region shall be this (Basic) Law,
the laws previously in force in Hong Kong as
provided for in Article 8 of this Law, and the laws
enacted by the legislature of the Region.
National laws shall not be applied in the Hong
Kong Special Administrative Region except for
those listed in Annex III to this Law. The laws
listed therein shall be applied locally by way of
promulgation or legislation by the Region.
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Article 18 (continued):
The Standing Committee of the National
People’s Congress may add to or delete from
the list of laws in Annex III after consulting its
committee for the Basic Law of the Hong Kong
Special Administrative Region and the
government of the Region. Laws listed in Annex
III to this law shall be confined to those relating
to defence and foreign affairs as well as other
matters outside the limits of the autonomy of the
Region as specified by this Law.
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• The present sources of law for HKSAR are:
(1) Basic Law;
(2) Laws previous in force in Hong Kong:
(a) Common law
(b) Rules of equity
(c) Legislation
(d) Customary law
(3) Laws enacted by the HKSAR; and
(4) Laws enacted by the National People’s Congress or
its Standing Committee which relate to defence and
foreign affairs and otherwise as stated in Article 18.
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2.2 Laws previously in force in
Hong Kong
2.2.1 Common Law
• Before 1 July 1997, the HK courts simply
followed the common law made by the three
English courts, the Privy Council, the House of
Lords and the Court of Appeal as precedents.
They were bound automatically under the
Application of English Law Ordinance.
• From 1 July 1997, the Privy Council is no longer
the highest court to which a dispute in HK can
be taken. The highest court in HK is now the
Court of Final Appeal.
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Hong Kong
• UK is no longer the sovereign of HK.
• Therefore decisions of England are of
persuasive nature only, and not binding on
the Hong Kong courts.
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Hong Kong
2.2.2 Rules of Equity
• Same as common law situation.
2.2.3 Legislation
• The English statutes, before 1997, were not
automatically in force in Hong Kong. Statutes
could be stated to apply to Hong Kong and
would then have this effect. Otherwise they
could be adopted by Hong Kong legislation.
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Hong Kong
• Before 1 July 1997, the Standing
Committee of the National People’s
Congress declared that 14 ordinances
previously in force in Hong Kong, which
contravene the Basic Law, are not to be
adopted as the laws of the HKSAR in 1997.
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Hong Kong
• Some names terms and expressions in the laws
previously in force in Hong Kong are substituted:
--“Her Majesty”, “Crown”, etc. shall be construed as the
Central Government or the Government of HKSAR.
--“Royal” shall be removed.
-- “Governor” shall be construed as the Chief
Executive of the HKSAR.
--“Attorney General”, “Chief Justice”, etc. shall be
construed as Secretary of Justice, Chief Judge of the
CFA or Chief Judge of the High Court.
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Hong Kong
• 2.2.4 Customary Law
The legislature before HK was being handed over to
PRC has changed the scope of the application of
Chinese customs during legislative reforms in 1971. It
passed many ordinances including:
Marriage Reform Ordinance
Married Persons Status Ordinance
Matrimonial Causes (Amendment) (No.2) Ordinance
Matrimonial Proceedings and Property Ordinance
Adoption Ordinance
Intestates Estates Ordinance
Deceased Family Maintenance Ordinance
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Hong Kong
• The above ordinances displaced Chinese
customs by concepts and principles of English
law, introducing monogamy and the Western
idea of family.
• Today, only some aspects of customary law
apply in HK, such as:
i. Indigenous inhabitants and their family can
be buried in the mountain place nearby their
villages after their death.
ii. Customary rights relating to the land in the
New Territories.
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2.3 Laws enacted by the HKSAR
• The new HKSAR legislative Council has full
power and authority to enact new laws subject
only to the reservations in respect of defence,
foreign affairs and the other matters set out in
Article 18(3) of the Basic Law.
• Laws enacted by Legislative Council, however,
must be reported to the Standing Committee of
the National People’s Congress as a matter of
record.
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2.3 Laws enacted by the HKSAR
• If the Standing Committee believes that a
new law is contrary to the Basic Law, it
can return the Law to Legislative Council.
• It cannot amend such law, but art.17 of the
Basic Law states that any law returned will
be invalidated.
• The Legislative Council can also change
any common law, equity or customary law.
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2.4 National law
• After the transfer of sovereignty, the national laws listed
in Annex III of the Basic Law are applied in the HKSAR :
• Resolution on the Capital, Calendar, National Anthem
and National Flag of the PRC
• Resolution on the National Day of the PRC
• Order on the National Emblem of the PRC proclaimed
by the Central People’s Government
• Declaration of the Government of the PRC on the
Territorial Sea
• Nationality Law of the PRC
• Regulations of the PRC Concerning Diplomatic
Privileges and Immunities
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3 – How Law Is created
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3.1 Legislation
3.1.1 Primary Legislation
• Under Article 73(1) of the Basic Law, the
Legislative Council of the HKSAR is
empowered to enact, amend or repeal laws.
• A law enacted by the Legislative Council is
called an ordinance.
• The ordinances enacted before 1 July 1997
are expressly preserved by virtue of Article
8 of the Basic Law.
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3.1 Legislation
3.1.2 Subordinate Legislation
• The Legislative Council has, in some ordinances,
empowered certain bodies to enact rules or
regulations. Such rules or regulations made are
called subordinate legislation (or delegated or
subsidiary legislation).
• It means any proclamation, rule, regulation,
order, resolution, notice, rule of court, by-law, or
other instrument made under or by virtue of any
ordinance and having legislative effect.
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3.1 Legislation
Legislative procedures are:
1. Drafting bill
2. Publication
3. First Reading in the Legislative Council
4. Second Reading
5. Committal Stage
6. Third Reading
7. Chief Executive’s assent
8. Publication and commencement
9. Reporting to the Standing Committee
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3.2 Case Law
• The Doctrine of Precedent
• Case law develops over time through the
process of review by future courts. This
process of review is governed by the
doctrine of precedent.
• The doctrine of precedent means that an
inferior or lower court is bound by the
decision of a superior or higher court
where the cases are similar in fact or law.
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3.2 Case Law
• The doctrine of precedent is also called
“stare decisis” which translates as “to
stand by decisions”.
• There are 2 kinds of stare decisis:
i. Vertical Stare Decisis
ii. Horizontal Stare Decisis
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3.2 Case Law
i. Vertical Stare Decisis
At the vertical level of the hierarchical court system, a
lower court must follow the decisions of a higher court
where the case is similar in fact and law.
In the HKSAR,
--the Court of Appeal (CA) of High Court is bound by
decisions of the Court of Final Appeal (CFA).
--the Court of First Instance of High Court is bound by
decisions of the CA and the CFA.
--the District Court (DC) and Magistrates Court (MC) are
bound by decisions of the High Court and CFA.
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3.2 Case Law
ii. Horizontal Stare Decisis
In the horizontal level (equal status) of
court system, the courts usually do not
bind each other.
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3.2 Case Law
• Precisely, the doctrine of precedent requires that
an inferior or lower court is bound by the ratio
decidendi laid down in the decision of a superior
or higher court where the cases are similar in
fact or law.
• Ratio Decidendi (often abbreviated to ratio)
means the reason for deciding the case. It is the
most important legal principles used and
contained in the decision and have been applied
to the particular facts of the present case.
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3.2 Case Law
• Obiter Dicta
A judge may make other statements of law
which are not part of the ratio decidendi. Such
statements are called obiter dicta (the singular is
obiter dictum). It means “a remark in passing”.
The judge may make such statements about
hypothetical situations in order to clarify or
explain the legal principles, which are relevant to
the case.
Although the obiter is not binding, it may
however be persuasive.
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4 – How Law Is administered
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4.1 The Courts
4.1.1 Meaning of court
• Art.81 of the Basic Law provides:
The Court of Final Appeal, the High
Court, District Courts, Magistrates’
Court and other special courts shall
be established in the Hong Kong
Special Administrative Region. The
High Court shall comprise the Court of
Appeal and the Court of First Instance.
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4.1 The Courts
• What are special courts?
Special courts are courts established for
particular purposes and particular kind of
cases. There is no express reference in
the Basic Law. Some typical special
courts in HKSAR are:
--Coroner’s Court
--Juvenile Court
--Family Court
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4.1 The Courts
the courts in question are the courts of
judicature, constituting the judicial system
of the Region.
The courts of the [HKSAR] shall exercise
judicial power independently, free from
any interference.
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4.1 The Courts
4.1.2 Jurisdiction and Appeal
• Art.19 of the Basic Law states that the
courts of the HKSAR shall have
jurisdiction over all cases in the Region,
except that the restrictions on their
jurisdiction imposed by the legal system
and principles previously in force in Hong
Kong shall be maintained.
The courts of HKSAR shall have no
jurisdiction over acts of state such as
defence and foreign affairs.
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4.1 The Courts
• Section 4 of the Court of Final Appeal
Ordinance also states that the CFA has no
jurisdiction over acts of state such as
defence and foreign affairs.
• The limitation of jurisdiction of HKSAR

courts is the acts of state.
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4.1 The Courts
4.1.3 Classification of jurisdiction
The jurisdiction of a court can also be
divided into:
a. original jurisdiction and appellant
jurisdiction,
b. civil jurisdiction and criminal
jurisdiction, etc.
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4.1 The Courts
• A court with appellant jurisdiction only
deals with appeals against decisions made
by another court.
An appeal does not mean a retrial of the
case. The court to which the appeal is
made has to determine whether the court
below has misapplied the law in the trial,
and generally does not interfere with the
finding of facts made by the court below.
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4.2 The Structure of Courts
• Court of Final Appeal (CFA)
The CFA has no jurisdiction over acts of
state e.g. defence and foreign affairs.
It does not have original jurisdiction, but
has unlimited appellant jurisdiction in both
civil and criminal cases, and hears
appeals from the CFI and the CA.
Its power is conferred on it by the Hong
Kong Court of Final Appeal Ordinance.
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• Art.82 of the Basic Law states that the power of final
adjudication of the HKSAR is vested in the CFA. In
July 1995, the Hong Kong Court of Final Appeal
Ordinance was passed and came into operation on
1 July 1997.
This replaced the Judicial Committee of the Privy
Council in London as the final appellate court for
Hong Kong.
The CFA is the highest court within the court
structure of HKSAR, and under the doctrine of
precedent, its decisions are binding on all courts of
the HKSAR.
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• The Hong Kong Court of Final Appeal
Ordinance provides that an appeal shall
be heard and determined by the CFA
constituting 5 judges (the Chief Justice, 3
permanent judges and 1 non-permanent
Hong Kong Judge or 1 judge from another
common law jurisdiction).
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• High Court
The High Court comprises
i. the Court of Appeal, and
ii. the Court of First Instance.
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• Court of Appeal (CA)
The CA does not have original jurisdiction,
but has unlimited appellant jurisdiction in
both criminal and civil cases.
This means that the CA does not conduct
a trial, but only deals with cases on their
appeal.
It also makes rulings on questions of law
referred to it by the lower courts.
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When the CA hears the appeal of a case,
it is not concerned with the facts but with
important and difficult arguments about the
law.
The judges in the CA sit by themselves
without assistance from a jury and must
give their judgments based on legal
arguments.
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The CA hears appeals from :
--all civil and criminal appeals from the CFI
--all civil and criminal appeals from the DC
--Lands Tribunal.
Under the doctrine of precedent,
judgments given by the CA are binding on
all the courts of the HKSAR, except the
CFA.
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• Court of First Instance (“CFI”)
It has unlimited original jurisdiction in civil and criminal
cases. Therefore, the most serious criminal offences and
the most substantial civil claims are dealt with in the CFI.
All criminal cases tried in the CFI are tried before a jury,
who decides whether or not the prosecution has proved
its case beyond reasonable doubt.
Civil cases are presided over by the judge alone, except

in defamation cases in which the plaintiff may request
that the trial be conducted before a jury.
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The CFI also has limited appellant
jurisdiction. It hears appeals from:
--Magistrates’ Courts,
--Labour Tribunal,
--Small Claims Tribunal,
--Obscene Articles Tribunal, etc.
When the CFI sits as a court of appeal
there is no jury.
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An appeal from the CFI is to be dealt with
by the CA.
Under the doctrine of precedent, the CFI is
bound by the judgments given by the CA
and the CFA.
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• District Court (DC)
It is presided over by a judge alone, without a
jury.
Main civil jurisdiction:
--Monetary claims for damages for breach of
contract and torts for an amount over
HK$75,000 but not more than HK$3,000,000.
--Action for the recovery of land where the
annual rent or the rateable value of the land
does not exceed $240,000.
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The DC has exclusive jurisdiction over
--claims brought under the Employees’ Compensation
Ordinance,
--tax recovery claims under the Inland Revenue
Ordinance, and
--distress for rent under the Landlord and Tenant
(Consolidation) Ordinance.
There is no limit on the amount of compensation and
rent which it may determine.
Matrimonial causes and adoption applications must also
be commenced in the DC (the court which handles these
types of cases is known as the Family Court).
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Main criminal jurisdiction:
--deals with more serious criminal offences
than the MC with the exception of a few
very serious offences e.g. murder,
manslaughter and rape.
The maximum term of imprisonment that
can be imposed by the DC is 7 years.
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The DC exercises limited appellant
jurisdiction. In hearing appeals from
tribunals and statutory bodies conferred on
it under various ordinances.
An appeal from the DC is to be dealt with
by the CA.
Therefore, under the doctrine of precedent,
the DC is bound by the judgments given
by the CA and the CFA.
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• Magistrates’ Courts (MC)
The MCs have only criminal jurisdiction.
They do not have power to deal with civil cases
and appeal cases.
MCs handle most of the minor criminal offences,
e.g. shoplifting, gambling, criminal damage,
assault, etc.
As a general rule, the jurisdiction of MC is limited
to imprisonment for 2 years, and a fine imposed
not exceeding HK$100,000.
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No matter how serious an offence is, all criminal
cases shall come before a MC in the initial stage.
The magistrate may transfer more serious cases
to the DC or the CFI on application by the
Secretary of Justice depending on the
seriousness of the case.
An appeal from a MC is to be dealt with by the
CFI.
Therefore, under the doctrine of precedent, a
MC is bound by the judgments given by the CFI,
the CA and the CFA.
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• Coroner’s Court
The Coroner’s Court inquires into deaths
which occur
--as a result of accident or violence, or
--under suspicious circumstances
e.g. when a person dies suddenly, or
when a dead body is found in or
brought into Hong Kong.
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• Juvenile Court (JC)
The JC has jurisdiction to hear charges against
children (aged under 14) and young persons (aged
between 14 and 16) for any offence other than
homicide.
As children under the age of 10 are deemed not to
have reached the age of criminal responsibility,
therefore no court, including the JC, has jurisdiction
over cases involving such children.
However, the JC does have power to deal with care
and protection cases involving young people aged
up to 18.
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4.3 Tribunals
• Tribunals constitute an alternative forum for
resolution of disputes instead of courts.
• Courts apply established rules of law,
particularly the rules of evidence in criminal and
civil matters, and can only make a judgment
when a fact has been legally proved.
Tribunals may serve similar functions as the
courts, but they have rules and procedures
different from courts. They do not require such
strict proof of facts, and are generally less formal
than in a court.
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4.3 Tribunals
• A number of tribunals have been set up by
the Government to deal with specific
activities. According to their functions, the
tribunals can be classified as:
--judicial tribunals,
--administrative tribunals and boards.
The judicial tribunals are amenable to the
High Court’s supervisory jurisdiction in the
same way as the inferior courts.
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4.3 Tribunals
4.3.1 Judicial Tribunals
• Small Claims Tribunal
The jurisdiction of the Small Claims Tribunal is
to hear minor monetary claims involving
amounts not exceeding HK$75,000.
The hearing is informal and no legal
representation is allowed.
An appeal from a decision made by the Small
Claims Tribunal is to be dealt with by the CFI.
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4.3 Tribunals
• Labour Tribunal
The jurisdiction of the Labour Tribunal includes
hearing claims arising from a breach of
employment contract, entitlement of an
employee to severance pay, and the amount of
such payment etc.
No legal representation is allowed.
An appeal from a decision made by the Labour
Tribunal is to be dealt with by the CFI.
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4.3 Tribunals
• Lands Tribunal
The jurisdiction of the Lands Tribunal
includes:
--determine the sums payable by the
Government and others for compensation
to persons whose land is compulsory
resumed or the value of which is reduced
because of public or private developments;
--determine building management disputes;
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4.3 Tribunals
--determine appeals from decisions of the
Commissioner of Rating and Valuation and
appeals against the assessment of the
prevailing market value of property made by
the Director of Housing; and
--determine all matters under the Landlord
and Tenant (Consolidation) Ordinance.
An appeal from a decision made by the

Lands Tribunal is to be dealt with by the CA.
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4.3 Tribunals
• Obscene Articles Tribunal
The Control of Obscene and Indecent Articles
Ordinance came into force in 1987 providing for
the establishment of the Obscene Articles
Tribunal.
The two main functions of the tribunal are to:
a. Determination
Determine whether an article referred to it
by a court or a magistrate is an obscene or
indecent article and whether any matter
publicly displayed is indecent;
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4.3 Tribunals
b. Classification
Classify an article as
--Class I (neither obscene nor indecent),
--Class II (an indecent article); or
--Class III (an obscene article).
Articles may be submitted by such parties
as authors, manufactures, publishers,
importers, distributors, copyright
owners or any persons who commissions
the design, production or publication of the
articles concerned.
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4.3 Tribunals
Anyone who publishes, possesses or imports for the
purpose of publication a Class III article is liable to:
--fine of $1 million, and
--imprisonment for 3 years.
Anyone who publishes a Class II article to a juvenile is
liable to:
(a) On 1st conviction
--fine of $400,000 and imprisonment for 12 months
(b) On a second or subsequent conviction
--fine of $800,000 and imprisonment for 12 months
--An appeal from the decision made by the Obscene
Articles Tribunal is to be dealt by the CFI.
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4.4 The Adversary System
• Adversary system is a trial conducted through a
battle of words between two lawyers and truth is
best discovered.
The lawyer:
--acts as the advocate of his/her client,
--presents the client’s view of the facts to the judge,
or to the jury if used,
--tries to persuade the judge or jury, if used, not only
that the client’s version is correct, but also that the
other party’s view of the facts, to the extent that it is
inconsistent/ in error,
--seeks to persuade the judge that the law favours
the party he or she represents.
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4.4 The Adversary System
• The judge’s roles:
--is viewed as not only unbiased but also essentially
passive,
--is to keep order in the court and, when a jury is present,
to see that the lawyers do not use improper methods to
influence the jury,
--acts as a referee,
--stops questions from lawyers or orders witnesses to
change their behaviour only when asked to do so by one
of the lawyers,
--need not be totally passive and may ask questions if
necessary to make clarification of facts,
--is responsible for correct application of the law to the
facts of the case and instructs the jury regarding the law.
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4.5 Department of Justice
• The Department of Justice is a government
department.
• Its main functions include:
--providing legal services to all government
departments,
--drafting legislation,
--prosecuting criminal offences, and
--representing the government in legal
proceedings of which the government is a party.
• The Secretary of Justice is the head of the
Department of Justice.
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4.6 Alternative Dispute Resolution
• Because of the time, money, and personal

resources that get tied up in litigation,
companies and individuals are increasingly
turning to alternatives to trials to settle disputes.
• The alternative dispute resolution has
advantages over trials:
--less complicated procedurally,
--generally quicker,
--cheaper.
86
• Alternative dispute resolution methods include:

(1) Mediation
It is a voluntary process in which a trained and
impartial third person, the mediator, can assist
the parties to communicate and negotiate issues
in a confidential setting.
During the process, each party has a chance to
put his case and to hear what the other has to
say.
87
The mediator’s job is not to make a

decision for the parties, but to assist the
parties to explore the strengths and
weaknesses of their own cases and to
identity possible solutions, so as to
facilitate them to reach a settlement
agreement.
88
(2) Conciliation
• It is a process in which the parties to a dispute,
with the assistance of a neutral third party (the
conciliator),
--identify the disputed issues,
--develop options,
--consider alternatives and
--endeavour to reach an agreement.
• The conciliator may have an advisory role on the
content of the dispute or the outcome of its
resolution, but not a determinative role.
89
• The conciliator may

--advise on or determine the process of
conciliation whereby resolution is attempted,
--make suggestions for terms of settlement,
--give expert advice on likely settlement terms,
--actively encourage the participants to reach an
agreement.
90
(3) Arbitration
• Arbitration is a determination of a dispute by the
decision of one third person or more called arbitrator
who is not a judge or magistrate in the formal judicial
system.
Providing that the arbitration is conducted according to
the principles of natural justice its procedures may be
varied by the parties to suit the size and complexity of
their dispute.
The result of the arbitration, known as the Award, is
enforceable in the same manner as a Court judgment.
Arbitration in Hong Kong is governed by the Arbitration
Ordinance.
91
5 –Legal Personnel
92
5.1 Judges and Magistrates
5.1.1 Who are judges?
• According to section 3 of the Interpretation and
General Clauses Ordinance, "judge" means:-
--District Court Judge,
--Recorder of the Court of First Instance,
--High Court Judge, including Deputy Judge
(Court of Appeal and Court of First Instance),
--Court of Final Appeal Judge, and
--Chief Justice.
• List of Judge and Judicial Officer:
http://www.judiciary.gov.hk/en/organization/judges.
htm
93
5.1.2 Appointment and removal of judges
• The Basic Law strictly defines the procedures for the
appointment and removal of judges.
• Judges of the courts of the HKSAR are appointed by
the Chief Executive on the recommendation of an
independent commission (Art. 88, Basic Law).
• Judges are chosen on the basis of their judicial and
professional qualities, and may be recruited from other
common law jurisdictions (Art. 92, Basic Law).
• Appointment of a judge of the Court of Final Appeal or
the Chief Judge of the High Court has to be reported to
the NPCSC for the record (Art. 90, Basic Law).
94
• A judge may only be removed for
--inability to discharge his or her duties, or
--misbehaviour.
• Removal of a judge is carried out 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.
95
• Removal of Chief Justice may only be
done on the recommendation of a tribunal
appointed by the Chief Executive,
consisting of not fewer than five local
judges (Art.89, Basic Law).
• In addition the dismissal of any judge of
the CFA or the Chief Judge requires the
endorsement of the Legislative Council
(Art.90, Basic Law).
96
• Members of the judiciary who are in
service at the time of the transfer of
sovereignty are guaranteed their
employment and seniority with pay,
allowances, benefits and conditions of
service no less favourable than before
(Art.93, Basic Law).
97
5.1.3 Qualification of Judges and Magistrates:
1. Nationality and Residency Qualifications
--The Chief Judge of the High court and the
Chief Justice must be a permanent resident with
Chinese citizenship and has no right of abode in
a foreign country. (Art. 90, Basic Law)
--For other judges, there is no requirement of
residency or citizenship. They may be chosen
on the basis of judicial and professional qualities.
(Art.92, Basic Law)
98
2. Professional Qualification
--A Magistrate must be qualified as
solicitor or barrister. They can have
gained such qualifications in HK or the UK,
Australia, or New Zealand.
--A District Court Judge must have been a
practising lawyer (barrister, solicitor, or
government lawyer) for at least five years.
99
--A judge of the Court of First Instance
must have had 10 years’ experience as a
lawyer (barrister, solicitor, or government
lawyer), magistrate, or District Court Judge.
--A Judge of the Court of Final Appeal can
be a current judge, a retired judge or a
barrister with at least 10 years’ experience.
100
5.1.4 Judicial Immunity
• Art. 85, Basic Law:
The courts of the HKSAR shall exercise judicial
power independently, free from any interference.
Members of the judiciary shall be immune from
legal action in the performance of their judicial
functions.
• Therefore, Members of the judiciary shall be
immune from legal action in the performance of
their judicial functions.
101
• The Basic Law seems to provide that the
judicial immunity applies equally to
magistrates as to judges of the highest
court for acts performed in the course of
their functions.
102
5.2 Private Legal Practitioners
• There are 3 major branches of the private
legal profession:
1. Solicitors
2. Barristers
3. Foreign lawyers
103
5.2.1 Solicitor
• When a person has legal problems, he or she
has to approach a solicitor.
• A solicitor acts for clients as their legal adviser
on various matters in connection with
--commerce,
--family or
--personal issues, e.g. drawing up wills,
conveyancing, forming companies, drafting
contracts, etc.
104
• Solicitors, unlike barristers, can form partnerships and
act personally.
• A solicitor may appear in
--Magistrate Court,
--District Court,
--High Court on appeals from Magistrate Courts
(s.118(2), Magistrates Ordinance), and
--Chamber before the Court of First Instance and the
Court of Appeal.
That means a solicitor has limited rights of audience.
105
5.2.2 Barrister
• A barrister works alone and is not
permitted to form partnerships with anyone
else.
• For administrative convenience, groups of
barristers usually form together to share
office accommodation and support
services. This shared accommodation is
called ‘Chamber’.
106
• The barristers sharing the same chamber have
separate legal, financial and professional duties.
No one barrister is responsible for the conduct
on another barrister in the same chamber.
• As an expert in litigation, a barrister appears as
advocate in all courts including the CFI, the CA
or the CFA, which solicitors are not allowed to
appear.
• In principle, barristers can only accept work from
a solicitor who gives instructions to the barrister
to do the things.
107
5.2.3 Foreign Lawyer
• Foreign lawyers are lawyers trained in a
foreign jurisdiction.
• They are registered in HK to practice only
foreign law and cannot practice HK law (Rule
12 of Foreign Lawyers Registration Rules).
• The formal registration of foreign lawyers
became possible only after amendments to the
Legal Practitioners’ Ordinance in 1994.
108
• A HK firm may employ a foreign lawyer. (s.39D,
LPO).
However, the foreign lawyer may not be
employed as a partner.
The number of foreign lawyers employed or
associated with the firm must not exceed the
number of resident principals and solicitors
employed in the firm.
109
5.3 Secretary for Justice
• The Secretary for Justice is the chief law
officer of the Government and the
administrative head of its legal offices.
• He/She is also the ex-officio chairperson
of the Law Reform Commission.
• He/She is appointed by the Central
People’s Government, after being
nominated by the Chief Executive.
110
• Main Duties:
i. acting as the principal legal adviser of
the government and the Chief
Executive;
ii. serving as an official member of the
Executive Council;
iii. deciding whether criminal prosecution
is to be brought against someone
without interference;
111
iv. representing the government in legal
proceedings of which the government is a
party;
v. acting as the guardian of public interest
by making judicial review application to
enforce public legal rights and to
intervene in cases involving great public
interest;
vi. representing the public interest as counsel
to Tribunal of Inquiry.
112
6 – How Law is Proceed
113
6.1 Criminal Trial
6.1.1 Introduction
• Criminal trials may take place in
--Magistrates Court,
--District Court or
--Court of First Instance .
The location of the trial is determined by
the category of offence.
However, all suspected, regardless of the
category of offence, will initially come to
the Magistrate Court.
114
6.1 Criminal Trial
• 3 categories of offence:
(a) Indictable only
--The most serious crimes, e.g. murder,
manslaughter, armed robbery, rape and
drug trafficking involving large quantities of
drugs, must be tried in the Court of First
Instance before a judge and a jury. All
these offences carry a maximum penalty of
life imprisonment.
115
6.1 Criminal Trial
--The trial of these cases may be preceded by a
committal hearing in the Magistrates Court
where the basic facts are tested. It is to
determine whether the matter should proceed to
the Court of First Instance for trial.
--The committal seeks to establish whether the
prosecution has sufficient evidence on which to
base its charge(s )and that if the matter goes to
trial that there is the likelihood that the offender
will be convicted.
--After the committal, the prosecution will draw
up the indictment (details of the crime charged).
116
6.1 Criminal Trial
(b) Indictable or summary
Some offences, e.g. theft, burglary, assaults
and drug offences involving lesser
quantities of drugs, may be tried upon an
indictment or a summons (summarily).
The decision as to whether the case will be
heard by way of an indictment in the Court
of First Instance or District Court is based
on the seriousness of the offence and the
likelihood of a substantial sentence.
117
6.1 Criminal Trial
The maximum period of imprisonment that can
be imposed by a District Court judge is 7 years.
If it is believed that the accused will and should
receive a longer period of imprisonment, then
the trial will take place in the Court of First
Instance before a jury.
This is the same where the decision is made to
have a trial on indictment, in the District Court or
summarily in the Magistrates Court, where the
usual maximum term of imprisonment is 2 years.
In both cases, the decision is made at the
discretion of the Secretary for Justice.
118
6.1 Criminal Trial
(c) Summary only
The less serious offences, e.g. careless
driving, common assault and illegal
gambling, can only proceed by way of
a summons and are tried in the
Magistrates Court.
119
6.1 Criminal Trial
6.1.2 Criminal Procedure
6.1.2.1 Criminal Procedure in the Magistrates Court
Summary Trial
• Plea-taking
If the plea is guilty, the prosecution would read the
summary of facts and the details of previous criminal
records, if any.
• Report
• Mitigation
• Sentence
120
6.1 Criminal Trial
--If the plea is not guilty, a date for trial must be fixed.
• Trial
--Prosecution’s opening
The prosecution commences by stating a case since the
prosecution bears the responsibility of establishing the
guilt of the accused (the onus of proof) beyond
reasonable doubt.
--Examination-in-chief of prosecution’s witness
--Exhibits
--Cross-examination of prosecution’s witness
--Re-examination of prosecution’s witness
--Submission by defence of No Case to Answer
121
6.1 Criminal Trial
--If the Magistrate accepts the submission of no
case to answer, the accused would be acquitted.
--If the Magistrate rejects the submission, there
is a case to answer. The trial will proceed.
--Opening case of Defence
The defence states his case.
The defence calls witnesses to give evidence.
As with the prosecution case, there will be
examination-in-chief, cross-examination and re-
examination of the such witnesses.
122
6.1 Criminal Trial
--Closing of submissions
--Verdict
The Magistrate alone considers the question of
guilt. If it is not guilty, the accused would be
acquitted.
If it is found guilty, the accused would be
convicted.
--Previous Criminal Records
--Reports
--Mitigation
--Sentence
123
6.1 Criminal Trial
6.1.2.2 Criminal Procedure in the District
Court
• The DC tries the indictable offences
(imprisonment for more than 2 years but
less than 7 years) transferred from the
Magistrates’ Court after the committal
hearing.
• A DC Judge sits alone without a jury.
124
6.1 Criminal Trial
• Pre-trial Review
• Plea-taking
--Pleaded guilty
If the plea is guilty, the prosecution would read
the summary of facts and the details of previous
criminal records, if any.
• Report
• Mitigation
• Sentence
125
6.1 Criminal Trial
• Plea-taking
--If pleaded not guilty, a date would be fixed for
trial.
• Trial
--Prosecution’s opening
--Examination-in-chief of prosecution’s witness
--Cross-examination of prosecution’s witness
--Re-examination of prosecution’s witness
--Submission by Defence of No Case to Answer
--If no case to answer—accused acquitted
126
6.1 Criminal Trial
--If case to answer--
>Defence’s opening
>Examination-in-chief of Defence’s
witness
>Cross-examination of Defence’s witness
>Re-examination of Defence’s witness
--Closing submissions
127
6.1 Criminal Trial
--Verdict
>If it is not guilty, the accused would be
acquitted.
>If it is found guilty, the accused would be
convicted.
--Previous criminal record, if any, and
reports
--Mitigation
--Sentence
128
6.1 Criminal Trial
6.1.2.3 Criminal Procedure in the Court of First
Instance (Original Jurisdiction)
• The CFI tries the indictable cases (imprisonment
for more than 7 years) transferred from the
Magistrates’ Courts after the committal
proceedings.
• Cases are tried, normally in open court, by a
Judge, sitting with a jury of seven, or when a
Judge so orders, a jury of nine.
129
6.1 Criminal Trial
• The Clerk of Court’s Office will list the
case for date fixing before the Listing
Judge and will inform the parties in writing
of the date of appearing.
• At the date for fixing a hearing, the Listing
Judge will give the dates of both the pre-
trial review and the trial.
130
6.1 Criminal Trial
• Pre-trial Review
• Trial
• Plea-taking
--Pleaded guilty
If the plea is guilty, the prosecution would read
the summary of facts and the details of previous
criminal records, if any.
• Report
• Mitigation
• Sentence
131
6.1 Criminal Trial
--If pleaded not guilty,
>Voir Dire
Determine admissibility of evidence in Chamber,
if any.
>Empanel Jury
>Prosecution’s opening
>Examination-in-chief of prosecution’s witness
>Cross-examination of prosecution’s witness
>Re-examination of prosecution’s witness
132
6.1 Criminal Trial
--Submission by Defence of No Case to Answer
--If no case to answer—accused acquitted
--If there is case to answer—start defence
>Defence’s opening
>Examination-in-chief of defence’s witness
>Cross-examination of defence’s witness
>Re-examination of defence’s witness
--Closing submission by prosecution and
defence
133
6.1 Criminal Trial
• Summing-up by Judge
• Jury to give verdict
In all crimes, including murder, a majority verdict
of five to two will be sufficient for a conviction.
If the verdict is not guilty, the accused would be
acquitted.
If the verdict is guilty, the accused is convicted.
• Previous criminal record, if any, and reports
• Mitigation
• Sentence
134
6.2 Civil Trial
• The procedure of civil trial in different

courts/tribunals is different.
• We would take the civil trial in the DC
and the CFI as examples to
demonstrate the civil trial.
135
6.2 Civil Trial
• Civil Proceedings in the High Court and
District Court
--The plaintiff starts a civil action against the
defendant in one of three ways:
>engage a lawyer
>seek the help of the Legal Aid Department
>start the action himself/herself
136
6.2 Civil Trial
--Certain types of individual, e.g. infants,
mentally disabled persons, estate of a deceased
person, can only commence a civil action by a
representative.
--A limited company must engage a solicitor to
act on its behalf in the CFI whether as plaintiff or
defendant unless special permission is obtained
from the Court.
--A limited company can appoint its director to
act on its behalf in the DC.
137
6.2 Civil Trial
• Mode of starting an action
--The plaintiff can commence a civil action in the
CFI and DC in one of the following modes:
>Writ of summons
>Originating summons
--We take the proceedings commenced by the
writ of summons as an example to introduce the
procedure of civil litigation in the DC and CFI.
138
6.2 Civil Trial
• Proceedings commenced by a writ of
summons
--The writ of summons is most commonly used
for commencing a civil litigation where there is a
substantial dispute of the facts between the
parties.
--It is always used to commence an action based
on contract, tort, damages for personal injuries
or death, damages to property arising out of a
breach of duty.
139
6.2 Civil Trial
Pleading Stage
--The civil case is commenced by the plaintiff.
--Procedures are:
(1) Plaintiff
>commences the action by issuing and filing
with the Court Registry a Writ of
Summons endorsed with a Statement of
Claim.
>verify the statement of claim by making a
statement of truth.
140
6.2 Civil Trial
(2) Plaintiff--serves the writ and statement of claim on all
the defendants.
(3) Plaintiff--serves the defendant with a statutory form
for the defendant to make admission, if his claim is
only for payment of money.
(4) Defendant--files an acknowledgement of service at
the Court Registry, stating in it whether he intends
to contest the claim within 14 days after being served
with the writ.
The Court will send a copy of it to the plaintiff.
141
6.2 Civil Trial
(5) If the defendant admits the monetary claim
and wishes to pay by instalments, he should
complete the statutory form, file it with the
Court and also serve a copy on the plaintiff.
(6) If the defendant contests the claim, he should
file and serve on the plaintiff a Defence and (if
applicable) a Counterclaim.
The defence and counterclaim have to be
verified by a statement of truth within 28 days
after the service of writ or the statement of
claim, whichever is the later.
142
6.2 Civil Trial
(7) If a defence is served, the plaintiff may file and serve a
Reply.
If there is a counterclaim, the plaintiff has to file and
serve a Defence to Counterclaim.
The reply and defence to counterclaim has to be
verified by a statement of truth and must be filed
and served within 28 days after being served with the
defence and counterclaim.
(8) If there is a defence to counterclaim, the defendant
may file and serve a reply to defence to counterclaim,
verified by a statement of truth, within 28 days after
the service of the defence to counterclaim.
143
6.2 Civil Trial
(9) At this stage, the pleadings are said to be closed.
(10)If a defendant does not file the acknowledgement of
service and/or fails to serve a defence on the plaintiff
within the prescribed time, the plaintiff can apply to the
Court to enter judgment on his claim.
If judgment is granted, a full trial is not required.
(11)If the plaintiff has an unliquidated claim, judgment on
liability will be entered if the defendant fails to file the
acknowledgement of service or defence.
But the plaintiff will have to attend Court so that a
Master or a Judge will assess the amount that he is
entitled to.
144
6.2 Civil Trial
Preparation for trial stage
(1) The parties have to exchange List of Document and
make inspection of the documents.
They also have to prepare and exchange Witness
Statements and (if applicable) expert reports.
(2) Upon close of pleadings, the parties are required to
complete a Timetabling Questionnaire, and
file and serve it on all the other parties in the action.
(3) If one of the parties acts in person, the plaintiff has to
take out a Case Management Summons to seek
case management directions from the Court.
145
6.2 Civil Trial
(4) A Master may give case management directions by
making an order nisi without a hearing, but the parties
may apply to vary the directions within 14 days after
the order is made.
Alternatively, the Master may call for a hearing to be
attended by all the parties before giving case
management directions.
(5) In the order nisi or at the hearing of the case
management summons, the Court will give directions
for the preparation for the trial.
The Court will also fix the date for the case
management conference (CMC).
146
6.2 Civil Trial
(6) Before attending the CMC, the parties have to file a
Listing Questionnaire.
If the parties have completed all the preparations for
trial, the Court may give leave at the CMC to set the
action down for trial.
If parties are not ready for trial, the Court may fix
another CMC.
(7) Unless the Court directs otherwise, there will be a Pre-
Trial Review (PTR) before the trial Judge at least 8
weeks before the trial begins.
147
6.2 Civil Trial
(8) All parties have to attend the CMC and the PTR, which
are milestone dates.
If the plaintiff does not attend the CMC or the PTR, the
Court will strike out the plaintiff’s claim provisionally.
The plaintiff or the defendant may apply to restore the
claim or the counterclaim within 3 months after it is
struck out.
The Court will only restore it upon being satisfied that
there is good reason for the party’s absence.
If there is no application to restore the proceedings
within 3 months from the hearing of the CMC or the
PTR, the claim or the counterclaim stands dismissed.
148
6.2 Civil Trial
Getting to trial stage
(1) When the case is ready for trial, the Court will give
permission for the action to be set down for trial.
The plaintiff will file an Application to Set a Case
Down for Trial.
The plaintiff has to give notice of setting down to all
the parties in the action.
(2) The action will be listed for trial.
149
6.2 Civil Trial
Trial Hearing
--The parties shall lodge with the Court a bundle of
documents not less than 3 clear working days before the
hearing date.
--Both parties should attend Court punctually on the trial
date, bringing relevant original documents and
photocopies for the Judge and for the other party if
necessary.
--The witnesses should come with the parties.
--At the trial, the Court will hear the evidence of
witnesses and the submissions of the parties.
150
6.2 Civil Trial
--Usually, the plaintiff who has the burden of proof will first
open the case.
--The processes are:
>Plaintiff– Examination in chief
-- Cross-examination
-- Re-examination
>Defendant– Examination in chief
-- Cross-examination
-- Re-examination
>Defendant -- Final submission
>Plaintiff -- Final submission
--Judgment 151

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Sino - Hong Kong Legal System

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INTRODUCTION TO

HONG KONG LEGAL SYSTEM

• The sources of Hong Kong law before

• The limitation of jurisdiction of HKSAR

Civil cases are presided over by the judge alone, except

An appeal from a decision made by the

• Because of the time, money, and personal

• Alternative dispute resolution methods include:

The mediator’s job is not to make a

• The conciliator may

• The procedure of civil trial in different

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