The rule of Law
The "rule
of law" refers to some of the fundamental principles of law that govern
the way in which power is exercised in Hong Kong. The rule of law has several
different meanings and corollaries. Its principal meaning is that the power of
the government and all of its servants shall be derived from law as expressed
in legislation and the judicial decisions made by independent courts.
At the
heart of Hong Kong's system of government lies the principle that no one, including
the Chief Executive, can do an act which would otherwise constitute a legal
wrong or affect a person's liberty unless he can point to a legal justification
for that action. If he cannot do so, the affected person can resort to a court
which may rule that the act is invalid and of no legal effect. Compensation may
be ordered in the affected person's favour. This aspect of the rule of law is
referred to as the principle of legality.
One corollary
of the principle of legality can be summarised as equality before the law. It
is fundamental that all persons, regardless of race, rank, politics or
religion, are subject to the laws of the land. Further, the rule of law
requires that the courts are independent of the executive. This independence is
crucial if impartial rulings are to be given when the legality of acts of
government falls to be decided.
Legality and
equality before the law are two fundamental facets of the rule of law. But the
principle demands something more, otherwise it would be satisfied by giving the
government unrestricted discretionary powers. A further meaning of the rule of
law, therefore, is to be found in a system of rules which restrict
discretionary power. To this end the courts have developed a set of guidelines
aimed at ensuring that statutory powers are not used in ways which the
legislature did not intend. These guidelines relate to both the substance and
the procedures relating to the exercise of executive power. An example of the
former is where a court concludes that a decision which purports to be
authorised by a statutory power is plainly unreasonable and cannot have been
envisaged by the legislature. An example of the latter is where a decision has
been made without according the party affected the opportunity of being heard
in circumstances where the legislature must have envisaged that such an
opportunity would have been given. In both cases a court would hold that the
decisions were legally invalid.
The
Basic Law ensures that
the legal system in the HKSAR will continue to give effect to the rule of law,
by providing that 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, save for any that contravene the Basic Law, and
subject to subsequent amendment by the HKSAR legislature.
Basic Law ensures that
the legal system in the HKSAR will continue to give effect to the rule of law,
by providing that 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, save for any that contravene the Basic Law, and
subject to subsequent amendment by the HKSAR legislature.
Sources of law in Hong Kong
Information
based on the Departmental publication "Legal System in Hong Kong"
printed in 2008; please refer to the websites concerned, as provided, for more
detailed or latest information regarding the issues involved.
National Law
Several
national laws of the People's Republic of China apply in Hong Kong by virtue of
Article 18 of the Basic Law. Under Article 158 of the Basic Law, an
interpretation of a provision of the Basic Law by the Standing Committee of the
National People's Congress is to be followed by the courts of Hong Kong in
applying the relevant provision.
The Basic Law
Nature
of the Basic Law
TheBasic Law of the HKSAR was enacted by
the National People's Congress in accordance with the Constitution of the
People's Republic of China. It is akin to a mini-constitution for the HKSAR. It
was promulgated on 4 April 1990 and took effect on 1 July 1997 on the
establishment of the HKSAR. All the systems and policies practised in the HKSAR
must be based on the provisions of the Basic Law. These include the social and
economic systems; the system for safeguarding the fundamental rights and
freedoms of its residents; the executive, legislative and judicial systems; and
the relevant policies. Furthermore, no law enacted by the legislature of the
HKSAR may contravene the Basic Law.
Basic Law of the HKSAR was enacted by
the National People's Congress in accordance with the Constitution of the
People's Republic of China. It is akin to a mini-constitution for the HKSAR. It
was promulgated on 4 April 1990 and took effect on 1 July 1997 on the
establishment of the HKSAR. All the systems and policies practised in the HKSAR
must be based on the provisions of the Basic Law. These include the social and
economic systems; the system for safeguarding the fundamental rights and
freedoms of its residents; the executive, legislative and judicial systems; and
the relevant policies. Furthermore, no law enacted by the legislature of the
HKSAR may contravene the Basic Law.
The most
prominent feature of the Basic Law is the underlying principle of "one
country, two systems" whereby the socialist system and policies shall not
be practised in the HKSAR, and the previous capitalist system and way of life
is to remain unchanged for 50 years.
Under the
Basic Law, all 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 the Basic Law and subject
to any amendment by the HKSAR legislature. National laws of the People's
Republic of China shall not be applied in the HKSAR except for a number of such
laws relating to defence and foreign affairs which are listed in Annex III to
the Basic Law.
Relationship
between the Central Authorities and the HKSAR
The National
People's Congress through the Basic Law authorises the HKSAR to exercise a high
degree of autonomy directly under the Central People's Government. The HKSAR
enjoys executive, legislative and independent judicial power, including that of
final adjudication, in accordance with provisions of the Basic Law. Although
foreign affairs relating to the HKSAR are the responsibility of the Central
People's Government, the HKSAR is authorised to conduct relevant external
affairs on its own in accordance with the Basic Law. The Central People's
Government is also responsible for the defence of the HKSAR, but the
responsibility of maintaining public order in the HKSAR is a matter for its
government.
Fundamental
rights protected by the Basic Law
The Basic Law
details the fundamental rights, freedoms and duties of the residents of the
HKSAR. These rights include the right to equality before the law; freedom of
speech, of the press and of publication; freedom of association, of assembly,
of procession and of demonstration; and the right and freedom to form and join
trade unions, and to strike; freedom of movement; freedom of conscience; and
freedom of religious belief. The Basic Law also guarantees that the provisions
of the International Covenant on Civil and Political Rights; of the
International Covenant on Economic, Social and Cultural Rights; and of the
International Labour Conventions as applied to Hong Kong will remain in force.
The common law and the rules of equity
Common law and
the rules of equity are to be found primarily in the judgments of the superior
courts in Hong Kong and other common law jurisdictions. In historical terms,
reports of judgments handed down by judges have, since at least the 15th
century, established in detail the legal principles regulating the relationship
between state and citizen, and between citizen and citizen. There are now some
hundreds of thousands of reported cases in common law jurisdictions which
comprise the common law. The rights relating to freedom of speech, freedom of
assembly, and freedom from arbitrary arrest or imprisonment have been spelt out
in cases which were decided more than three centuries ago. As we have seen,
these have now been underpinned by provisions in the Basic Law.
The common
law's most distinguishing hallmark is reliance on a system of case precedent, not
restricted to judicial decisions generated within any single jurisdiction, but
case law from all jurisdictions throughout the common law world. Article 84 of
the Basic Law provides that the courts of the HKSAR may refer to the precedents
of other common law jurisdictions. In addition, the Court of Final Appeal and
theJudiciary of the HKSAR
is given power to invite judges from other common law jurisdictions to
participate in the judicial processes.
Judiciary of the HKSAR
is given power to invite judges from other common law jurisdictions to
participate in the judicial processes.
Statute law enacted in Hong Kong
The vast
majority of statute law in force in Hong Kong is made locally and contained in
the Laws of Hong Kong. A great deal of legislation is made under delegated
powers. This is called subsidiary legislation. For example, an ordinance may
delegate to the Chief Executive in Council (the Chief Executive with the advice
of the Executive Council) the power to make regulations to deal with the
details of the implementation of a legislative scheme.
Chinese customary law
Some aspects
of Chinese customary law apply in Hong Kong. For example, under section 13 of
the New Territories Ordinance (Cap 97) the courts may recognise and enforce
Chinese customs or customary rights in relation to land in the New Territories;
and Chinese law and custom is recognised in the Legitimacy Ordinance (Cap 184).
International law
Over 200
international treaties and agreements have been applied to Hong Kong. A treaty
does not constitute part of Hong Kong's domestic law until given effect by legislation.
Nonetheless, it may affect the development of the common law. It may, for
example, be resorted to by a court as an aid to interpretation. The rapidly
developing rules of customary international law can also become absorbed into
the common law.
The criminal law
Information
based on the Departmental publication "Legal System in Hong Kong"
printed in 2008; please refer to the websites concerned, as provided, for more
detailed or latest information regarding the issues involved.
Criminal prosecutions
The Secretary for Justice has overall
responsibility for the conduct of prosecutions in Hong Kong. It is for the
Secretary and those who prosecute on the Secretary's behalf to decide whether
or not a prosecution should be instituted in any particular case or class of
cases.
Secretary for Justice has overall
responsibility for the conduct of prosecutions in Hong Kong. It is for the
Secretary and those who prosecute on the Secretary's behalf to decide whether
or not a prosecution should be instituted in any particular case or class of
cases.
In prosecutions
for serious or complicated offences, or those which give rise to difficult
points of law, police officers and other law enforcement agents will seek the
advice of the Secretary for Justice or of counsel in the Prosecutions Division of the Department of
Justice. In determining whether or not to prosecute, the
Secretary for Justice considers two issues: first, is the evidence sufficient
to justify the institution of proceedings? Second, if it is, does the public
interest require a prosecution to take place? In making that decision the
Secretary for Justice is not subject to any instructions or directions from the
executive.
Prosecutions Division of the Department of
Justice. In determining whether or not to prosecute, the
Secretary for Justice considers two issues: first, is the evidence sufficient
to justify the institution of proceedings? Second, if it is, does the public
interest require a prosecution to take place? In making that decision the
Secretary for Justice is not subject to any instructions or directions from the
executive.
In practice,
many prosecutions at the summary level involve simple cases which are processed
by the Police or other investigative bodies and do not require the specific
involvement of the Secretary for Justice. At the same time, all such cases are
scrutinised at the Magistrates' Courts by Senior Court Prosecutors acting on
behalf of the Secretary.
The jury system
The most
serious criminal offences, such as murder, manslaughter, rape, armed robbery
and certain drug offences, are tried by a judge of the Court of First Instance,
sitting with a jury of seven people or, where a judge so orders, nine. It is
the jury which decides whether the accused is guilty or not guilty. A judge
will urge a jury to strive for unanimity in reaching their verdict, but a jury
may return a majority verdict of five to two or seven to two.
The purpose of
a death inquest is to establish the identity of a deceased person and the cause
of and circumstances connected with the death. In certain defined cases, an
inquest must be held with a jury. In these cases, and in any other case in
which the Coroner decides to hold an inquest with a jury, a jury of five is
appointed.
Principles of defence
A number of
principles of defence, which are in accordance with Article 14 of the
International Covenant on Civil and Political Rights (which has been applied to
Hong Kong by the Hong Kong Bill of Rights Ordinance (Cap 383)), have been
incorporated in the Criminal Procedure Ordinance (Cap 221), Legal Aid in
Criminal Cases Rules (Cap 221D), or absorbed into the common law. The Basic Law
guarantees the preservation of these rights, which are:
equality
before the courts;
the right to a
fair and public trial by a competent, independent and impartial tribunal
established by law;
the right to
trial by jury in the most serious cases;
the
presumption of innocence;
the burden of
proof lies on the prosecution;
the standard
of proof is one of beyond reasonable doubt;
the right to
prompt and detailed information as to the nature and cause of the charge;
adequate time
for preparation of the defence case;
the right to
legal representation;
the right to
be tried without undue delay;
the right to
legal assistance;
the right to
be tried in one's presence;
the right to
call witnesses and secure their presence in court;
the right to
cross-examine prosecution witnesses;
the right to
have the free service of an interpreter;
the right to
remain silent in court;
the right to
appeal against conviction and/or sentence;
the right not
to be tried or punished for an offence for which one has previously been
convicted or acquitted; and
the right to
bail pending trial or appeal (subject, however, to the gravity of the offence
charged and all the surrounding circumstances).
The civil law
Information
based on the Departmental publication "Legal System in Hong Kong"
printed in 2008; please refer to the websites concerned, as provided, for more
detailed or latest information regarding the issues involved.
The main
difference between criminal and civil proceedings is that the former are
instituted in the name of the HKSAR to suppress crime and to punish criminals,
while the latter are taken to protect and to recover property and to enforce
obligations.
While civil
proceedings are often taken by the government against individuals, including
corporations, and vice versa, such proceedings are more commonly instituted by
individuals against other individuals.
The burden of
proof is easier to discharge in a civil case than in a criminal case, the
standard of proof being one based on the balance of probabilities.
The principal
branches of the civil law include contract, tort, property, administrative,
family and revenue law. The law of contract is concerned with the many
different types of agreements into which persons, including corporations, enter
in going about their daily business. As one of the world's major financial and
commercial centres, Hong Kong sees an immense number of corporate and financial
agreements entered into each year. One important function of a lawyer is to
ensure that such contracts are drafted clearly in an endeavour to prevent
disputes arising.
The law of
tort is concerned with claims arising out of breaches of a duty of care owed by
one individual to another.
The law of
property governs the ownership of, and rights in, property including land and
buildings and intellectual property such as trademarks, patents and copyright.
Administrative
law is designed to protect the individual against an abuse of power by the
government or public bodies.
Family law
deals with, amongst other things, divorce and disputes over the custody of
children, maintenance of spouse and children, and the division of property.
Revenue law is
relevant to the assessment and recovery of taxes and duties.
The language of the law
Information
based on the Departmental publication "Legal System in Hong Kong"
printed in 2008; please refer to the websites concerned, as provided, for more
detailed or latest information regarding the issues involved.
Article 9 of
theBasic Law provides that
"In addition to the Chinese Language, English may also be used as an
official language by the executive authorities, legislature and judiciary of
the Hong Kong Special Administrative Region". Both Chinese and English
therefore have a part to play in the language of the law.
Basic Law provides that
"In addition to the Chinese Language, English may also be used as an
official language by the executive authorities, legislature and judiciary of
the Hong Kong Special Administrative Region". Both Chinese and English
therefore have a part to play in the language of the law.
Having regard
to this, and the HKSAR's position as a major international trading and
financial centre, a Committee on Bilingual Legal System was established in
April 1998 to advise the government on a range of issues, including the policy
and long-term goal of bilingualism in law and how that goal should be attained.
Statute law
In keeping
with the Basic Law's provisions on bilingualism, all legislation in Hong Kong
is enacted in both Chinese and English, and both versions are accorded equal
status. Thanks to the bilingual legislation programme begun in 1989, authentic
Chinese texts have been completed of all pre-existing legislation which had
been enacted in the English language only, and Hong Kong's statute book is now
entirely bilingual.
Amendments
made to the Interpretation and General Clauses Ordinance (Cap 1) facilitate the
legal interpretation of bilingual legislation by providing a number of guidelines.
The most significant of these is in section 10B which provides that both texts
of a bilingual ordinance are equally authentic and are presumed to have the
same legal meaning. Where the two texts disclose a difference of meaning, the
meaning which best reconciles the texts, having regard to the object and
purposes of the Ordinance, shall be adopted. This approach is closely in line
with Articles 31 and 33 of the Vienna Convention on the Law of Treaties.
The courts
In July 1995,
the Official Languages Ordinance (Cap 5) was amended to enable any court to use
either or both of the official languages in any proceedings before it as it
thinks fit; to enable a party or his legal representatives or a witness in
proceedings in a court to use either or both the official languages, or such
other language as the court may permit; to provide that the decision of a court
to use one of the official languages in any proceedings before it, is final;
and to empower the Chief Justice to make rules and issue practice directions to
regulate the use of Chinese language in the courts.
Efforts are
being made on various fronts to improve the use of Chinese in the higher
courts. A Practice Direction on the use of Chinese in the Court of First
Instance has been prepared by theJudiciary.
Training for bilingual judges has also been introduced, including the provision
of courses on Chinese judgment writing skills.
Judiciary.
Training for bilingual judges has also been introduced, including the provision
of courses on Chinese judgment writing skills.
No matter
whether English or Chinese is used in the proceedings, everyone has a right to
use the language of his choice to give evidence. The court will arrange
interpretation facilities.
The legal profession
Information
based on the Departmental publication "Legal System in Hong Kong"
printed in 2008; please refer to the websites concerned, as provided, for more
detailed or latest information regarding the issues involved.
The legal
profession in Hong Kong is divided into two distinct branches - barristers
(also known as "counsel") and solicitors. Solicitors have limited
rights of audience before the courts whereas barristers have unlimited rights
of audience in all courts and tribunals where legal representation is allowed.
Lawyers practising within one branch of the profession are not, at the same
time, allowed to practise within the other.
While the
majority of members of the legal profession are engaged in private practice, a
significant number work in one of the government legal departments (such as the Department of Justice or theLegal Aid Department),
or are employed as legal advisers to public or private companies, or engaged in
teaching and research at one of Hong Kong's tertiary institutions.
Department of Justice or theLegal Aid Department),
or are employed as legal advisers to public or private companies, or engaged in
teaching and research at one of Hong Kong's tertiary institutions.
Barristers
There are
around 1 000 practising barristers in Hong Kong. They are all members of the
Hong Kong Bar Association ("HKBA"). The Bar Council of the HKBA,
which is elected annually, is the governing body for barristers.
The conduct
and etiquette of members of the Bar are governed by the HKBA's Code of Conduct
as amended from time to time. Every barrister, whether in practice or not, must
maintain the standards and professional integrity of the Bar. The Bar Council
is responsible for investigating and considering complaints against the conduct
of barristers. Should the circumstances warrant, the complaints will be
referred to the Barristers Disciplinary Tribunal which will determine the
matter and, if the complaint is found to be made out, impose the appropriate
punishments.
In respect of
legal works conducted in Hong Kong, barristers can only accept instructions
from a firm of solicitors, or members of professional bodies recognised by the
Bar Association. Hence, the point of contact for members of the public in most
cases is the solicitor who gathers the evidence of a case and interviews
witnesses. They can also be employed, or instructed, as the case may be, by the
Department of Justice, the Legal Aid Department or the Duty Lawyer Service. In
respect of legal works conducted outside Hong Kong, instructions from foreign
lawyers or directly from lay clients are allowed provided the conditions in
Annex 14 of the HKBA's Code of Conduct are satisfied.
When a
barrister has attained a substantial level of accomplishment and recognition,
and has been in practice for at least 10 years, he or she can apply to become
Senior Counsel (a process generally known as "taking silk", a
reference to the material of the gown they wear in court). The expertise of a
Senior Counsel is usually sought in the more complex cases.
Barristers
must practise as sole-proprietors, whereas solicitors are allowed to practise
together in a partnership. While barristers usually practise in a set of
chambers, their legal, financial and professional duties are separate and
distinct from those of the other barristers sharing those chambers. No one
barrister is responsible for the conduct of another barrister in the same set
of chambers.
Solicitors
There are over
5 900 solicitors practising in Hong Kong. TheLaw Society is the
governing body of the profession, which is largely self-regulatory. An elected
Council has wide responsibilities for maintaining professional and ethical
standards. It is responsible for issuing practising certificates.
Law Society is the
governing body of the profession, which is largely self-regulatory. An elected
Council has wide responsibilities for maintaining professional and ethical
standards. It is responsible for issuing practising certificates.
The work of
the Law Society includes investigating complaints made by members of the public
against solicitors (which may result in disciplinary proceedings); researching
and commenting on legislative proposals; setting and maintaining high standards
of work and ethical practice through practice rules, directions and guidelines;
and maintaining frequent contacts with legal professional bodies in other
jurisdictions.
The Law
Society sets and monitors education and training standards for solicitors and
administers a scheme of Continuing Professional Development (CPD) which is
mandatory for all trainee solicitors and all solicitors with practising certificates.
The scheme includes mandatory risk management education for all levels of the
profession.
The Law
Society also registers and regulates the practice of all foreign lawyers
practising in Hong Kong. There are 54 established foreign law firms which advise
on the law of their home jurisdictions. Foreign lawyers can be admitted as Hong
Kong solicitors either by obtaining an exemption from, or by passing, the
Overseas Lawyers Qualification Examination, administered by the Law Society.
Some 400
solicitors are admitted to practise as notaries public in Hong Kong. The Hong
Kong Society of Notaries is the governing body for notaries public, and the
Chief Justice is the appointing authority for Hong Kong notaries. The Chief
Justice is responsible for appointing a Notaries Public Disciplinary Tribunal
Panel from which the Notaries Public Disciplinary Tribunal is set up to inquire
into the conduct of notaries public.
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