The University of Hong Kong

Department of Law

Academic Year of 2018-2019

Examiners’ Report

Course code: LLAW1008 Course title: The Legal System of the Hong Kong SAR
Report prepared by: Dr. Eric C. Ip and Ms. Karen Kong Date: 9 January 2019

The format of the examination is as follows: a two-hour, closed-book, in-hall examination (90%
of the final grade; the remaining 10% being allocated to class participation) consisting of three
questions, of which students must answer two. A total of 259 students sat for the examination.
Overall, the examiners are very pleased with the performance of the candidates. Over 90% of all
candidates achieved at least a B range grade. Roughly 50% of all candidates achieved grade B+
or above. Remarkably, around 20% of the entire cohort managed to reach the A+/A/A- range.

Despite this being a closed book examination, most candidates were able to back up their answers
with relevant legal authorities and appropriate examples. Indeed, the examiners have continuously
taken into account of the important fact that, unlike an open book examination, which allows
students to have access to a vast amount of printed materials during the examination, candidates
in a closed book examination are not remotely expected to memorise every detail such as exact
quotes or citation such as sub-sections of constitutional or statutory provisions or the full name of
cases.

Question One (50 marks)

What are the ways, if any, through which a national law of the People’s Republic of China can be
made enforceable by a court of the Hong Kong Special Administrative Region? Support your
answer with relevant examples.

Relevant points that should be mentioned include (students are not required to memorise sub-
section numbers in relation to Article 18 of the Basic Law):-

 National laws of the People’s Republic of China (PRC) refer to Chinese legislation
made by the National People’s Congress and/or its Standing Committee. Note: NPCSC
Interpretations, being legislative interpretations, are not regarded as national laws in both the
mainland and Hong Kong legal systems.

 The courts of the Hong Kong Special Administrative Region (SAR) exercise the
independent judicial power, including the power of final adjudication, vested in the
SAR, in accordance with Articles 19(1) & (2), 80, 85, etc. of the Hong Kong Basic Law.

 Article 18(1) of the Hong Kong Basic Law provides for the “The laws in force in the Hong
Kong Special Administrative Region shall be this 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 have not been included into this general provision.

 Article 18(2) of the Hong Kong Basic Law expressly provides that “national laws shall not
be applied in the Hong Kong SAR except for those listed in Annex III to this Law.” In other
words, national laws are generally not applicable, and hence not enforceable, by the
courts of the Hong Kong SAR, which are obligated to “adjudicate cases in accordance with
the laws applicable in the Region as prescribed in Article 18 of this Law and may refer to
precedents of other common law jurisdictions” under Article 84 of the Basic Law.

 The same Article 18(2) also provides that “The laws listed therein shall be applied locally
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 by way of promulgation or legislation by the Region.” Failure to highlight these two
application methods has caused substantial loss of marks in certain answer scripts.

▪ Promulgation is done by way of a legal notice issued by the Chief Executive in the
Gazette. The national law is applied to Hong Kong without amendment, e.g., the PRC
Law on the Exclusive Economic Zone and the Continental Shelf and the PRC Law of
the People's Republic of China on the Territorial Sea and the Contiguous Zone. These
laws, though strictly speaking enforceable by the courts of the Hong Kong SAR,
usually do not have much local implication in Hong Kong and are seldom if ever
enforced in the SAR courts.

▪ National laws may also be applied by way of local legislation, i.e., an Ordinance
enacted by the Legislative Council and signed by the Chief Executive.
Domestication of national laws in local legislation is usually necessary for those
national laws that have local implications, especially implications on local
constitutional rights and freedoms, e.g., the National Flag and the National Emblem
Ordinance which was enacted to implement the Law of the People's Republic of China
on the National Flag and the Law of the People's Republic of China on the National
Emblem in Hong Kong.

 An excellent answer will be able to mention that the Court of Final Appeal has affirmed
that a Hong Kong Ordinance localising an Annex III law must conform to the Basic
Law or risk invalidation (HKSAR v Ng Kung Siu).

 An excellent answer will be able to point out that a national law that has been listed in
Annex III by the NPCSC will not be automatically enforceable by the courts of the
Hong Kong SAR. For instance, the NPCSC has added the National Anthem Law to Annex
III to the Basic Law in November 2017. However, as of December 2018, the Hong Kong
SAR has not yet applied the law locally by way of promulgation or legislation; as such, the
National Anthem Law is not (yet) enforceable by the courts of the Hong Kong SAR.

 Article 18(3) of the Hong Kong Basic Law provides that “The Standing Committee of the
National People's Congress (NPCSC) 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.” An excellent answer will
be able to note that the NPCSC has no power to add or delete any national law to Annex
III, in light of the subject-matter limitation. For instance, the NPCSC cannot include the
PRC Criminal Law and the PRC Organic Law of the People’s Courts into Annex III of the
Basic Law.

 Article 18(4) of the Hong Kong Basic Law provides that, “In the event that the NPCSC
decides to declare a state of war or, by reason of turmoil within the Hong Kong SAR which
endangers national unity or security and is beyond the control of the government of the
Region, decides that the Region is in a state of emergency, the Central People's Government
(CPG) may issue an order applying the relevant national laws in the Region.” Should this
scenario happen, the CPG may possibly apply national laws not confined to those in
Annex III to the Hong Kong SAR, and the judges and courts of the Hong Kong SAR
will likely be required to enforce national laws listed in the relevant CPG order.
However, the courts must still give precedence to the Basic Law, should national laws
so applied conflict with it, per Articles 11 and 104 of the Basic Law.

 An excellent answer will be able to mention that the Hong Kong Basic Law itself is a
national law of the People’s Republic of China that is directly enforceable by the courts
of the Hong Kong SAR (Ng Ka Ling v Director of Immigration).

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 An excellent answer will be able to point out that the general non-enforceability of
national laws in the Hong Kong SAR is to effectuate the One Country, Two Systems
and “high degree of autonomy” principles; per Article 5 of the Hong Kong Basic Law:
“The socialist system and policies shall not be practised in the Hong Kong Special
Administrative Region, and the previous capitalist system and way of life shall remain
unchanged for 50 years.” National laws of the PRC are drafted within the socialist civilian
law system of mainland China, and are not infrequently fundamentally at odds with the
values of the “capitalist” common law system of Hong Kong.

 To sum up, the ways through which a national law of the PRC can be made enforceable
by a court of the Hong Kong SAR depend on the nature of the national law in question:

▪ A national law that is not related to defence and foreign affairs and/or deals with matters
within the autonomy of the Region is generally not enforceable by the courts of the
Hong Kong SAR, unless it is applied by way of a CPG notice in the midst of a state of
emergency of the SAR declared by the NPCSC.

▪ A national law that is related to defence and foreign affairs and/or deals with matters
outside the autonomy of the Region is still generally not enforceable by the courts of
the Hong Kong SAR, unless it is listed by the NPCSC in Annex III and applied locally
through promulgation or local legislation.

▪ The only national law that is in itself fully enforceable by the courts of the Hong Kong
SAR is the Hong Kong Basic Law, which, according to the Court of Final Appeal in
Chong Fung Yuen, “In essence … provides for a separate legal system in the Hong
Kong Special Administrative Region based on the common law”.

 Common mistakes that led to the loss of marks include irrelevant discussions of the
Enforcement of Mainland Judgment Ordinance, which has nothing to do with how national
law can be enforced by the courts of the Hong Kong SAR, rather than mainland court
decisions, can be enforced in the Hong Kong SAR; excessive discussions of treaties, which
are not national laws; and mistaking Standing Committee Interpretations of the Basic Law
and the White Paper of 2014 for national laws, which they are not.

Question Two (50 marks)

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To what extent does the criminal justice system of the Hong Kong Special Administrative
Region ensure equality before the law? Support your answer with relevant examples.

Students should explain the key features of the criminal justice system in Hong Kong and
critically analyse the extent to which it protects equality before the law, rather than having
a mere theoretical discussion or writing in a descriptive manner. Examples are required to
support their views. Relevant points include:

Fundamental Rights in Criminal Proceedings

Students should be able to raise some fundamental general principles and human rights protected
under the common law criminal justice system:

 Equality before the law (Article 25 of the Hong Kong Basic Law; Articles 1 and 22 of the
Hong Kong Bill of Rights).

 Right to be presumed innocence.

 Proof beyond reasonable doubt.

 Right to confidential legal advice, access to the courts, choice of lawyers for timely
protection of lawful rights and interests or for representation in the courts, and to judicial
remedies (Article 35(1) of the Hong Kong Basic Law).

 Right to a fair trial by the judicial organs without delay and shall be presumed innocent until
convicted by the judicial organs (Article 87 of the Hong Kong Basic Law).

 All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law…. any judgment rendered in a criminal case or in a suit at law
shall be made public except where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children.” (Article 10 of
the Hong Kong Bill of Rights).

 (1) Everyone charged with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law.
(2) In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality—
(a) to be informed promptly …
(c) to be tried without undue delay;
(d)… to defend himself in person or through legal assistance of his own choosing; … and
to have legal assistance assigned to him, in any case where the interests of justice so require,
and without payment by him in any such case if he does not have sufficient means to pay
for it; …..
(g) not to be compelled to testify against himself or to confess guilt.
(Article 11 of the Hong Kong Bill of Rights).

Good and excellent answers will include examples to illustrate the extent to which these
principles are complied with in Hong Kong to ensure equality before the law.

Prosecutorial Independence

Students should critically discuss prosecutorial independence (or the lack thereof) in Hong
Kong, and how it affects equality before the law.

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 The Department of Justice of the Hong Kong SAR shall control criminal prosecutions, free
from any interference. (Article 63 of the Hong Kong Basic Law)

 Prosecutorial independence is critical to preventing the Prosecutions Division to

descend into a tool of the powerful for persecuting residents arbitrarily. The public
prosecutor has no client but the community at large. His duty, above all, is to act impartially
in pursuit of the public interest.

 The Prosecution Code (2013) states that any decision to prosecute must satisfy two
mandatory conditions (5.3):
▪ It must be supported by sufficient admissible evidence.
▪ It must be consistent with the general public interest.

 The Secretary for Justice is nonetheless ‘a politician who sits on the Executive Council
and answers to the Chief Executive.’ He is also the principal legal adviser to the Chief
Executive, the government and independent government departments and agencies. This
may undermine the independence of prosecutorial decisions, and thus equality before the
law.

Good and excellent answers will include examples to illustrate the issue of prosecutorial
independence in Hong Kong. Examples include:

▪ Prosecution of Occupy Central/Umbrella Movement protestors

▪ Prosecution of former Chief Executive Donald Tsang
▪ Decision to appeal sentence of Occupy Central student leaders

Trial by Jury

Students should be able to discuss the features of a trial by jury, as well as the relevance of
jury trial in ensuring equality before the law. Relevant points include:

 ‘The principle of trial by jury previously practised in Hong Kong shall be maintained’.
(Article 86 of the Hong Kong Basic Law)

 Magna Carta Clause 1215 Clause 39: no freeman should be punished ‘except by the
lawful judgment of his peers or by the law of the land’.

 The tacit assumption of jury trials is that the participation of 12 randomly selected lay
persons injects a democratic and popular element into a remote, elitist, and technically arcane
legal system.

 The jury empowers individual citizens to return verdicts on the most serious crimes
independently of the State.

 In Hong Kong, the minimum number of jurors is 5; a jury of 7 (and up to 9) jurors are sworn
for criminal trials.

 The doctrine of jury equity: jury equity is considered the last line of defence against
oppressive prosecution whereby jurors can rescue a deserving defendant.

 However, jury trial may also lead to inequality and arbitrariness:

▪ Juries do not give reasons for their verdicts.
▪ Jury verdicts may be based on irrelevant factors, e.g.:
▪ The personality of counsel (including the prosecutor)
▪ Personal bias for or against law enforcement
▪ Media influence
▪ Defendant’s appearance
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 There is no absolute right to trial by jury. The decision as to whether an indictable offence
be tried in the Court of First Instance by a judge and jury or in the District Court by a judge
alone is the prerogative of the Secretary for Justice. Chiang Lily v Secretary for Justice (2009)

Students may raise other relevant points to answer this question. For example:

▪ Accusatorialism in criminal litigation

▪ Criminal Legal Aid and Duty Lawyers Scheme

▪ Independent Judiciary

▪ Criminal Sentencing
▪ The parity of sentences: offenders of similar backgrounds committing the same offence
ought to receive the same sentence.

Common mistakes that led to the loss of marks include the use of irrelevant examples, such as
plea bargaining, whose benefits to equality before the law are dubious.

Question Three (50 marks)

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Critically discuss the role of international and foreign judgments and the modern approach to
statutory interpretation in maintaining the rule of law in the legal system of the Hong Kong
Special Administrative Region.

Students should be able to mention at least one version of the rule of law as covered by the
course; though they must not treat any one of these as the only account of the rule of law
within the common law tradition. Examples of relevant versions include:-

Dicey’s rule of law

 “In England no man can be made to suffer punishment or to pay damages for any conduct
not definitely forbidden by law”.

 “[E]very man’s legal rights or liabilities are almost invariably determined by the ordinary
Courts of the realm”.

 “[E]ach man’s individual rights are far less the result of our constitution than the basis on
which that constitution is founded”.

Lord Bingham’s rule of law:

 The law must be accessible and so far as possible intelligible, clear and predictable.

 Questions of legal right and liability should ordinarily be resolved by the application of the
law and not the exercise of discretion.

 The laws of the land should apply equally to all, save to the extent that objective differences
justify differentiation.

 The law must afford adequate protection of fundamental human rights.

 Means must be provided for resolving, without prohibitive cost or inordinate delay, bona
fide civil disputes which the parties themselves are unable to resolve.

 Ministers and public officers at all levels must exercise the powers conferred on them
reasonably, in good faith, for the purpose for which the powers were conferred and without
exceeding the limits of such powers.

 Adjudicative procedures provided by the state should be fair.

 The rule of law requires compliance by the state with its obligations under the international
law that governs the conduct of nations, whether deriving from treaty or international custom
and State practice.

Andrew Li’s rule of law:

 “First, under the rule of law, everyone, both those who govern and those who are governed,
is subject to the same laws”.

 “Secondly, disputes between citizens and disputes between citizen and government are
resolved fairly and impartially by an independent Judiciary”.

 “Thirdly, the rule of law involves the effective protection of human rights”.

Geoffrey Ma’s rule of law:

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 [T]he rule of law comprises two connected premises: first, the existence of laws that respect
the dignity and rights (whether personal, proprietary or what are known as human rights and
freedoms) of the individual; and secondly, the existence of an independent judiciary to
enforce these rights and liberties.1

The absence of any elaboration of the concept of the rule of law should be considered to be an
important omission.

International and Foreign Judgments

Students should discuss how the use of international and foreign judgments by courts could
help to uphold rule of law.

 International and foreign judgments include cases and interpretive materials of the
Covenants applicable to Hong Kong, e.g. ICCPR, CEDAW, and cases from national courts
in other countries (mainly Commonwealth), e.g. UK, Australia, Canada, US, as well as from
regional courts, e.g. European Court of human Rights.

 ‘The courts of the Hong Kong Special Administrative Region shall adjudicate cases in
accordance with the laws applicable in the Region as prescribed in Article 18 of this Law
and may refer to precedents of other common law jurisdictions’. (Article 84 of the Hong
Kong Basic Law).

 In Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, 401, Sir Anthony Mason NPJ:
‘In interpreting the provisions of chap. III of the Basic Law and the provisions of the Bill, the
Court may consider it appropriate to take account of the established principles of
international jurisprudence as well as the decisions of international and national courts and
tribunals on like or substantially similar provisions in the International Covenant on Civil and
Political Rights, other international instruments and national constitutions.’

 More generally, in Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117,
133, Li CJ:
‘After 1 July 1997, in the new constitutional order, it is of the greatest importance that the
courts in Hong Kong should continue to derive assistance from overseas jurisprudence. This
includes the decisions of final appellate courts in various common law jurisdictions as well
as decisions of supra-national courts, such as the European Court of Human Rights.’

‘Compared to many common law jurisdictions, Hong Kong is a relatively small jurisdiction.
It is of great benefit to the Hong Kong courts to examine comparative jurisprudence in seeking
the appropriate solution for the problems which come before them. This is underlined in the
Basic Law itself. Article 84 expressly provides that the courts in Hong Kong may refer to
precedents of other common law jurisdictions.’

 Reference to international and foreign jurisprudence ensures that Hong Kong court
decisions are consistent with international common law and human rights standards.
All common law jurisdictions indeed share broad constitutional values grounded in liberal
notions of legitimacy, e.g., the rule of law, protection of rights and liberties, accountability,
etc. Reference to their jurisprudence can help develop the common law.

 It also facilitates cross-fertilisation and borrowing of overseas legal solutions, best practices,
and foreign legal wisdom can help to improve the quality of Hong Kong law over time.

1
GT Ma, “The Essence of Our Society: From a Written Constitution to Reality and into the Future 50
Years”, Chinese University of Hong Kong 50th Anniversary Distinguished Lecture (22 March 2013).
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▪ However, caution should be exercised in reference to international and foreign
jurisprudence, to see if they are suitable for the local circumstances of Hong Kong, and
whether it would create legal uncertainty and unpredictability of the outcome of adjudication.

Good and excellent answers will include relevant examples to support their arguments.

Common mistakes that led to the loss of marks include confusing international treaties and
judgments of international courts: the dualist theory applies only to international treaties not
judgments of international courts; and mistaking English law as the only form of foreign
jurisprudence.

Modern Approach to Statutory Interpretation

 The modern approach to statutory interpretation is the Purposive Approach. Its key
purpose is to give effect to the intention of the legislature. The rationales behind are
principles of legislative supremacy and separation of powers. Some answers misunderstood
the purposive approach and perplexingly compared it to case law, which is tantamount to
comparing apples with oranges. Furthermore, an excessive focus on the interpretation of the
Basic Law is not the best example of the modern approach to statutory interpretation, as it
has little to do with the day-to-day interpretation of ordinary statutes. Loss of marks is
inevitable under such conditions.

 Interpretation and General Clauses Ordinance (‘IGCO’)(Cap.1), s.19:

“An Ordinance shall be deemed remedial and shall receive such fair, large and liberal construction
and interpretation as will best ensure the attainment of object of the Ordinance according to its
true intent, meaning and spirit.”

 “The modern approach is to adopt a purposive interpretation. The statutory language is

construed, having regard to its context and purpose. Words are given their natural and
ordinary meaning unless the context and purpose points to a different meaning. Context and
purpose are considered when interpreting the words used. And not only when an ambiguity
may be thought to arise..” (HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568)

Students should raise some examples of how the purposive approach to statutory
interpretation helps to uphold the rule of law:

▪ It keeps the legislation in line with social and technological change, and prevent
unjust results: Secretary for Justice v Wong Ka Yip Ken (2013)

▪ It keeps the legislation in line with international human rights development: W v

Registrar of Marriages (2013)

 The limit is that judges cannot ignore the plain meaning of the text; they cannot ascribe
to words meanings which they are incapable of bearing (China Field Ltd v Appeal
Tribunal (Buildings)(No.2) (2009) 12 HKCFAR 342).

Good and excellent answers should explain that going beyond the intention of the legislature
would create legal uncertainty and lead to overreach of judicial power to the making of
legislation. They should discuss the limits of the court in reforming existing law vis-à-vis the role
of the legislature.

Using the T v Commissioner of Police (2014) 17 HKCFAR 593 as a major example is relevant
and appropriate, though it could also be problematic if candidates are not familiar with the decision
enough, as the case lies more with the drafting of the statute than on judicial interpretation, and a
number of candidates have quite disappointedly failed to realise that both the Court of Final
Appeal majority and the minority in the decision actually adopted purposive approach.

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Some students wrongly attributed the inherent ambiguity of human language itself to the purposive
approach, thereby committing a categorical error. This fails to illustrate the constraints placed onto
the purposive approach, and fails to understand why interpretation is needed in the first place.
Legal ambiguity inevitably exists, as law is written in human language, and human language is
inherently ambiguous. The problem is not per se in the purposive approach.

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