THE UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW

DECEMBER EXAMINATIONS 2017-2018

Examiner’s 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: 15 January 2017

A total of 242 candidates sat for this examination. The format of the examination is as
follows: a two-hour, closed-book, in-hall examination (90% of the final grade, the
remaining 10% of the final grade assessed according to students’ tutorial performance)
consisting of three questions, of which students must answer two. Overall, we are
pleased with the performance of the candidates. Over 85% of the candidates achieved
grades above B-, including 19.01% achieving grades within the A+/A/A- range. The
following sets out the examiners’ remarks on performance in each question in greater
detail.

Question One (50 marks)

In what ways are judicial independence and access to justice, respectively, essential
for the rule of law to endure in the Hong Kong Special Administrative Region?

The general performance of this question is good. Students were able to explain the
relevance of judicial independence and access to justice in relation to the rule of law,
with reference to various versions of the rule of law as taught in the course. Answers
with insufficient discussion of at least one influential interpretation of the rule of law
covered in the course had been be marked down. Most students were able to mention
relevant legal authorities to explain judicial independence and access to justice in the
context of the Hong Kong legal system.

Judicial Independence

Many students managed to identify two aspects of the independence of judiciary: (i)
vis-à-vis the legislative and executive branches of the government, and (ii)
independence of judges as a person, and stated the relevant Basic Law provisions.
Students who missed out one of the two aspects had been marked down. Examples of
relevant points include:-

 “The National People's Congress authorizes the Hong Kong Special

Administrative Region to exercise a high degree of autonomy and enjoy
executive, legislative and independent judicial power, including that of final
adjudication, in accordance with the provisions of this Law” (BL 2).

 Judicial power should be independent: “The Hong Kong Special Administrative

Region shall be vested with independent judicial power, including that of final
adjudication” (BL 19(1)).

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 The courts of judicature are under no man but under the rule of law: “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” (BL
84).

 The exercise of judicial power should be free from interference: “The courts of
the Hong Kong Special Administrative Region 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” (BL
85).

 Judicial appointments should be made independently: “Judges of the courts of

the Hong Kong Special Administrative Region shall be appointed by the Chief
Executive on the recommendation of an independent commission composed of
local judges, persons from the legal profession and eminent persons from other
sectors” (BL 88).

 Judicial tenure should be secured: “A judge of a court of the Hong Kong Special
Administrative Region may only be removed for inability to discharge his or her
duties, or for misbehaviour, by the Chief Executive on the recommendation of a
tribunal appointed by the Chief Justice of the Court of Final Appeal and
consisting of not fewer than three local judges” (BL 89(1)).

 Judicial appointments should be based on merit: “Judges and other members of

the judiciary of the Hong Kong Special Administrative Region shall be chosen
on the basis of their judicial and professional qualities and may be recruited from
other common law jurisdictions” (BL 92).

Access to Justice

Most students were able to identify the human rights relevant to access to justice, and
some ways in which Hong Kong has adopted to improve access to justice. Good
answers were able to offer more detailed elaborations on the relationship between
access to justice and the rule of law. Examples of relevant points include:-

 “Hong Kong residents shall have the right to confidential legal advice, access to
the courts, choice of lawyers for timely protection of their lawful rights and
interests or for representation in the courts, and to judicial remedies” (BL 35(1)).

 Meaning of Access to Justice: “Access to justice has become a term of art

signifying the arrangements made by the state to ensure that the public at large
and especially those who are indigent can obtain the benefits available through
the use of law and the legal system.” (Michael Zander)

 Without access to justice, there is no legal protection, no remedy, and in effect

no law.

 Access to justice is a right inherent to:-

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  Equality before the courts (BOR Art 10, Art 25 BL)
 Right to a fair and public hearing. (BOR Art 11, Art 87 BL)

 Elements to achieve access to justice include:-

 Legal advice
 Access to court and legal services
 Fair trial
 Remedies
 Substantive justice

 There is a right to legal representation that is not an absolute right. Whether the
right can be claimed depend on the seriousness of the case, capacity of the
individual to represent himself, procedural difficulties, and gravity of penalty etc.
(HKSAR v Wu Wai Fung 2003, Stock Exchange of Hong Kong v New World
Development Ltd 2006)

Students were expected to mention at least one version of the rule of law in the
common law tradition as covered by the course. 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.

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 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

 “[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.”

Good and excellent answers were able to discuss in multi-faceted ways how judicial
independence and access to justice are essential or not essential to the version of the
rule of law as they have articulated. Examples of relevant points include:-

Judicial Independence

 Judicial independence is a fundamental principle of the rule of law which is a

cornerstone of HK’s separate system under one country two systems. It exists not
for the personal benefit of Judges but for the protection of the public.

 The Hong Kong courts under the leadership of the Court of Final Appeal, have
played an important role in protecting human rights.

 Under the principle of judicial independence, judges should not be pro or anti
anyone or anything. Judges ought to have no master, political or otherwise.
Their fidelity should be to the law and only to the law. Judges should serve the
community by adjudicating disputes fairly & impartially according to law.

 In the exercise of its supervisory jurisdiction, the High Court through the
mechanism of judicial review ensures all administrative bodies and inferior
tribunals observe the rule of law in its capacity as the guardian of standards of
legality and due process”: Lee Yee Shing Jacky v Inland Revenue Board of
Review [2011] 6 HKC 307.

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Access to Justice

 In a society governed by the rule of law, the legal system must ensure that the
citizen has access to justice at reasonable cost and speed. To meet community
expectations, the court system must be able to resolve disputes whether between
citizen and citizen or between citizen and State, not only fairly but also
economically and expeditiously. Justice which is not affordable or delayed will
amount to a denial of justice.

 Access to justice is important to ensure the rule of law because it:-

 Ensures law can be enforced and remedies granted. Without access to the
court to enforce the law, the law is as good as non-existent.
 Ensures equality before the law. The rich and the poor can be on level
playing field. The poor can have legal representation through legal aid.
 Ensures protection of human rights. Without access to justice, the rights
cannot be enforced in the court, and the government cannot be held liable
for breach of human rights obligations.
 Prevents exercise of arbitrary power of the government. Through access to
the court and holding the government accountable, e.g. judicial review, the
public can ensure the government act in accordance with the law.

Excellent answers were able to point out that judicial independence and access to
justice exists in all major versions of the rule of law in the common law tradition.
Such answers were also able to critically explain the actual and/or potential
weaknesses of judicial independence and access to justice in attaining the rule of law
in contemporary Hong Kong. Examples of relevant points include:-

Judicial Independence

 The NPCSC never promised not to use Interpretations to pre-empt litigation in

the Hong Kong courts; most recently in 2016 it delivered an Interpretation in the
midst of a High Court proceeding, ultimately leading to the disqualification of
popularly elected legislators. As former Chief Justice Li observed, while an
Interpretation “exercised to override a court judgment in Hong Kong, especially
one of the Court of Final Appeal … would be legally valid and binding … [it]
would have an adverse effect on judicial independence in Hong Kong, which is
an essential principle of the rule of law under our system”.

 On 10 June 2014 the State Council Information Office published a White Paper,
entitled “The Practice of the ‘One Country, Two Systems’ Policy in the Hong
Kong Special Administrative Region”, which asserts that “judges of the courts at
different levels and other judicial personnel”, being part of “all those who
administrate Hong Kong”, “have on their shoulders the responsibility of
correctly understanding and implementing the Basic Law, of safeguarding the
country’s sovereignty, security and development interests, and of ensuring the
long- term prosperity and stability of Hong Kong”, for “this is necessary for
displaying sovereignty, ensuring loyalty to the country by the mainstay of Hong
Kong administrators and helping them to subject to oversight by the central
government and Hong Kong society”.

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 In recent years, abusive comments about the Judiciary by certain political
activists and senior politicians’ cavils against judges have raised real concerns
about the state of judicial independence in Hong Kong.

Access to Justice

In Hong Kong, there are various government and non-governmental mechanisms to

improve access to justice, they include:-

 Legal aid – Ordinary Legal Aid Scheme and Supplementary Legal Aid Scheme.
The schemes provide legal representation for eligible applicants for civil and
criminal trials at District Court or above, and committal proceedings in the
Magistrates’ Courts. They are administered by the Legal Aid Department, Home
Affairs Bureau. Eligibility criteria includes means and merits test.

 Duty Lawyer Service – Administered by Hong Kong Bar Association and the
Law Society.

 Pro Bono services

 Other legal aid services include:-

 Free Legal Advice Scheme – administered by Duty Lawyer Service

 Bar Free Legal Services Scheme
 Consumer Council Legal Aid Fund
 Equal Opportunities Commission
 Clinical Legal Programme, Faculty of Law, HKU
 Community Legal Information Centre, Faculty of Law, HKU
 Ad hoc legal services offered by politicians/NGOs
 Judicial Resources Centre

 However, legal aid in Hong Kong is insufficient to cover the middle class. The
means test is too low. There are some cases not covered by legal aid.

 Other non-governmental access to justice services are also not sufficient. Pro
bono culture is underdeveloped in the legal sector. The rich still have
comparative advantage in litigation.

Delay in court cases can also hinder access to justice:-

 The Judiciary carried out the Civil Justice Reform in 2009. The Rules of the
High Court was amended to improve the cost-effectiveness of civil procedures
and to provide judges with more active case management powers. However
backlog in cases continue to rise over the years.
 Alternative Dispute Resolution (mediation, arbitration) can help to improve
access to justice through reduced fees and time for dispute resolution. However
ADR cannot replace traditional civil court system.

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Question Two (50 marks)

Critically evaluate the use of the adversarial trial, legal precedents and the jury
system to achieve justice and equality in the common law systems. Support your
answer with relevant examples drawn from the legal system of the Hong Kong Special
Administrative Region.

Candidates’ performance in this question was poor relative to the other questions. A
significant number of students were unable to support the answers with relevant
examples from Hong Kong and, as a result, had not fully addressed the question. The
better students were able to critically analyse the strengths and weaknesses of the use
of adversarial trial, legal precedents and the jury system, and draw a conclusion on the
extent to which these features of the common law system are able to achieve justice
and equality.

Adversarial Trial

Most students were able to identify the key features of an adversarial trial. The better
answers were able to give more detailed elaboration and argument on its linkages with
justice and equality. Examples of relevant points include:-

 The adversarial trial, as traditionally understood, is a competitive process, to

encourage lawyers seeking to discover evidence to seek thoroughly, and to
identify the flaws in the other side’s evidence more aggressively than would be
at all likely in a system where the judge is the principal discoverer.

 “In the system of trial which we have evolved in this country, the judge sits to
hear and determine the issues raised by the parties, not to conduct an
investigation or examination on behalf of society at large, as happens, we believe,
in some foreign countries … If he goes beyond this, he drops the mantle of a
judge and assumes the role of an advocate; and the change does not become him
well. Lord Chancellor Bacon spoke right when he said that: “Patience and
gravity of hearing is an essential part of justice; and an over-speaking judge is no
well-tuned cymbal.” (Jones v National Coal Board [1957] 2 QB 55, 63–65,
Denning LJ)

 An independent and impartial judiciary administering the civil courts is a dispute

resolution forum in which a less sophisticated party is empowered to vindicate its
lawful rights against a more powerful party.

However, justice and equality could be hindered in the following ways:-

 Adversarialism incentivises the opposing lawyers to present their cases in a way

that has given rise to tactical manipulation.
 Judicial non-intervention allows abuses by lawyers with excessive, unnecessary
interlocutory applications and appeals, causing undue delay and high legal costs.
 Without legal aid, the poor is unable to afford the high legal fees in adversarial
trial system.

Relevant examples from the Hong Kong legal system:-

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 Some political activists have to abandon their cases, others go bankrupt, because
of insufficient legal funding.

Legal Precedents

Students who were not able to cite relevant cases or examples to support their general
discussion had been marked down.

 Stare Decisis/doctrine of precedent – when a court makes a decision, any courts

which are of equal or lower status to that court must follow that previous
decision, if the case before them is similar to that earlier case.

 Case law – like cases be treated alike, different cases be treated different.

 Pre-conditions of binding precedent:-

 Existence of an earlier decision

 Similar material facts
 Curial hierarchy
 Ratio decidendi

 Justice and equality is achieved through like cases be treated alike, ensuring
equality before the law. Also, following precedents increase the predictability
and certainty of cases.

 However to rigid adherence to precedents may lead to harsh decisions. Also, case
law may become outdated and could not catch up with changing social
circumstances.

 Thus the court may use different techniques to achieve justice:-

 Classifying a statement as ratio or obiter, thus treating it as binding or

non-binding respectively.
 Re-formulating the ratio, making it broader or narrower than the original
ratio.
 Distinguishing a precedent.
 Overrule a precedent by higher court.

 Judges have certain degree of discretion to achieve justice and to keep law
up-to-date with changing social circumstances through these techniques.

 Relevant examples from the Hong Kong legal system:-

 W v Registrar of Marriage case – men and women to include transsexuals

under Marriage Ordinance
 Secretary for Justice v Wong Ka Yip – computer to include mobile phones
under the Crimes Ordinance

Jury System

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Most students were able to identify the strengths and weaknesses of the jury system.
Better students elaborated more and gave relevant examples to support their
argument.

 Historical root traced back to Magna Carta 1215: the principle of trial by one’s
own peers.

 Participation of 9 randomly selected lay persons to trial criminal cases of the

most serious nature.

 Jury system achieves equality and justice because:-

 Jury is independent, it is selected by random, from members of public,

ensuring public participation
 Trial by peers ensures that the government will not use harsh law to oppress
citizens
 Jury equity – jurors decide cases according to their conscience, if they
believe the letter of the law is unduly harsh, or if they feel special sympathy
for the accused, they can deliver verdicts based on their conscience, in order
to achieve justice.

 However, there are also issues with the jury system that hinder it from achieving
justice and equality:-

 Jury may be biased or incompetent. For example, sexual or racial bias. They
may not understand the law. Some cases involve complicated facts.
 Jury can be easily influenced by media in the internet age.
 No reasons need to be given for verdict – unknown if jury has made any
error in reasoning.
 Jury is more inclined to acquit than judges.
 There is no right to trial by jury, whether jury trial is adopted is the sole
discretion of the Secretary for Justice. The system is prone to be abused.

 Relevant examples from the Hong Kong legal system:-

 The Donald Tsang corruption case. Hung jury for two times. Spend huge
amount of time and money. Great pressure to the defendant. Fair and just to
the defendant?

Students were expected to explain coherently what they mean by justice and equality.
Examples of relevant points include:-

 Justice – fair outcome, remedies for a wrong, just deserts, proportionate

punishment for an offence.

 Equality – like cases be treated alike, different cases be treated differently.

Equality before the law, judges are impartial, unbiased, level playing field
between the parties.

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Excellent answers were able to take a logical and coherent position on the value of
adversarial trial, legal precedents and the jury system to achieve justice and equality
in the common law tradition.

Question Three (50 marks)

Critically explain the “high degree of autonomy” enjoyed by the Hong Kong Special
Administrative Region in relation to the Region’s status under international law, and
the interface of Hong Kong and mainland Chinese law on matters other than the
Basic Law’s interpretation, respectively.

The better answers were able to identify the relevant Basic Law principles on the
power of Hong Kong to conduct external affairs, and gave concrete examples.
Examples of relevant points include:-

 “The Hong Kong Special Administrative Region will be directly under the
authority of the Central People's Government of the People's Republic of China.
The Hong Kong Special Administrative Region will enjoy a high degree of
autonomy, except in foreign and defence affairs which are the responsibilities of
the Central People's Government” (JD 3(2)).

 “The National People's Congress authorizes the Hong Kong Special

Administrative Region to exercise a high degree of autonomy and enjoy
executive, legislative and independent judicial power, including that of final
adjudication, in accordance with the provisions of this Law” (BL 2).

 The principles of China’s legal system are fundamentally at odds with those of
its Hong Kong counterpart. At the end of the day, the “two systems” arrangement
is a pragmatic and sensible admission, that methods suitable for ruling mainland
China will not work in Hong Kong, and that a peaceful and economically
conducive unification of the two under one sovereign state would not happen
unless the existing institutions and way of life of Hong Kong could be conserved.

Any substantial discussion of the NPCSC’s and/or the Hong Kong courts’
interpretation of the Basic Law, especially to the whole or partial exclusion of the
proper subject-matter of the question (i.e. the Region’s status under international law
and the interface of Hong Kong and mainland Chinese law), would constitute a very
serious error, i.e., misinterpretation of the question and misunderstanding what is
expected from the answer.

Students were expected to accurately explain Hong Kong’s status under international
law. Examples of relevant points include:-

 Hong Kong’s status under international law: Hong Kong is a non-state

international legal actor / sub-sovereign entity / secondary subject of
international law.

 Hong Kong continues to enjoy high degree of autonomy in international affairs

after the handover, including participation in international organisations (e.g.
WTO, APEC) and entering into international treaties (e.g. mutual legal assistance

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 treaties, surrender of fugitive offenders treaties).

 Relevant Basic Law provisions include:-

“The Central People’s Government shall be responsible for the foreign affairs
relating to the Hong Kong Special Administrative Region. The Central People's
Government authorizes the Hong Kong Special Administrative Region to
conduct relevant external affairs on its own in accordance with this Law” (BL
13).

“Representatives of the Government of the Hong Kong Special Administrative

Region may, as members of delegations of the Government of the People's
Republic of China, participate in negotiations at the diplomatic level directly
affecting the Region conducted by the Central People's Government” (BL 150).

“The Hong Kong Special Administrative Region may on its own, using the name
"Hong Kong, China", maintain and develop relations and conclude and
implement agreements with foreign states and regions and relevant international
organizations in the appropriate fields, including the economic, trade, financial
and monetary, shipping, communications, tourism, cultural and sports fields”
(BL 151).

 “Representatives of the Government of the Hong Kong Special Administrative

Region may, as members of delegations of the People's Republic of China,
participate in international organizations or conferences in appropriate fields
limited to states and affecting the Region, or may attend in such other capacity as
may be permitted by the Central People's Government and the international
organization or conference concerned, and may express their views, using the
name ‘Hong Kong, China’. The Hong Kong Special Administrative Region may,
using the name ‘Hong Kong, China’, participate in international organizations
and conferences not limited to states.” (BL 152).

 “International agreements to which the People's Republic of China is not a party

but which are implemented in Hong Kong may continue to be implemented in
the Hong Kong Special Administrative Region. The Central People's
Government shall, as necessary, authorize or assist the government of the Region
to make appropriate arrangements for the application to the Region of other
relevant international agreements” (BL 153).

 Further, after 1997, the ICCPR and ICESCR continues to apply to Hong Kong
pursuant to Art 39 Basic Law and the Bill of Rights Ordinance, even China has
not ratified the ICCPR and so it does not apply to Mainland China. International
and foreign human rights cases continue to be referred to in domestic courts.

The better answers were able to identify a number of the critical issues in the interface
of Hong Kong and mainland Chinese law, and evaluate their significance in relation to
a high degree of autonomy. Examples of relevant points include:-

 Arrangements are “soft law” that result from inter-jurisdictional agreements

between Hong Kong and China and that lack official legal status under the Basic

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 Law.

 Arrangements to facilitate the mutual service of judicial documents in civil and

commercial proceedings and mutual enforcement of arbitral awards were made
to fill the legal vacuum left by the non-applicability of relevant international
treaties between Hong Kong and China.

 Significant barriers to the opening up of the mainland legal market remain even
after the conclusion of the CEPA.

 The enforcement of mainland judgments in Hong Kong is governed by the

Mainland Judgments (Reciprocal Enforcement) Ordinance and case law; the
former’s narrow ambit reflects a cautious attitude towards the lack of judicial
expertise, the lack of finality and the prevalence of judicial corruption in certain
mainland courts.

 Controversies over the extension of Chinese laws to offences committed wholly

in Hong Kong contrary to the principle of the separation of systems recurred in
the first 10 years following the Handover. Examples include the trial in mainland
China of offenders who committed offences against Hong Kong law and Hong
Kong victims inside Hong Kong territory, leading to several highly controversial
executions (e.g., the Big Spender Case, the Telford Garden murders); the alleged
kidnapping of Causeway Bay booksellers case, etc.

 The High-Speed Railway Jurisdictional Controversy 2017: In July 2017, the

Chief Executive in Council endorsed the building of joint immigration facilities
at the West Kowloon high-speed railway station. Mainland officials will enforce
mainland laws in an area that the Mainland rents from the Hong Kong SAR
government. Mainland laws also apply to trains and platforms but not tracks.
This project apparently contradicts a number of Basic Law provisions including
but not limited to:-

“The socialist system and policies shall not be practised in the Hong Kong SAR,
and the previous capitalist system and way of life shall remain unchanged for 50
years” (BL 5).

“All offices set up in the Hong Kong SAR by departments of the Central
Government, or by provinces, autonomous regions, or municipalities directly
under the Central Government, and the personnel of these offices shall abide by
the laws of the Region” (BL 22(3)).

“National laws shall not be applied in the Hong Kong SAR 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” (BL 18(2)).

Good and excellent answers were able to analyse the above in view of the ambiguities
and tensions associated with the notion of “high degree of autonomy”.

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