Legal System in Hong Kong

2007 marked the tenth anniversary of the establishment of the Hong Kong Special Administrative Region and the constitutional framework of Hong Kong's legal system has changed significantly since that first edition. But under the Basic Law of the Region, the laws previously in force have been maintained and adherence to the rule of law, buttressed by an independent judiciary, has remained a constant. With the establishment of the Court of Final Appeal in 1997 the power of final adjudication is now exercised in Hong Kong and the Basic Law provides constitutional protection for the rights and freedoms of Hong Kong's residents.


 

• 1Sources of law in Hong Kong
• 2The criminal law
• 3The civil law
• 4The courts
• 5Legal system in China versus Hong Kong
• 6Legal help

[top]Sources of law in Hong Kong

Information based on the Departmental publication "Legal System in Hong Kong" printed in 2008

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.

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.

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.

[top]The criminal law

Information based on the Departmental publication "Legal System in Hong Kong" printed in 2008

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.

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.

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.

[top]The civil law

Information based on the Departmental publication "Legal System in Hong Kong" printed in 2008

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.

[top]The courts

Information based on the Departmental publication "Legal System in Hong Kong" printed in 2008

Thecourts of justice in Hong Kong are the Court of Final Appeal, the High Court (which comprises the Court of Appeal and the Court of First Instance), the District Court, the Magistrates' Courts, the Coroner's Court, and the Juvenile Court. In addition, there are a number of tribunals which have jurisdiction to adjudicate on disputes relating to specific, defined areas. These include the Lands Tribunal, the Labour Tribunal, the Small Claims Tribunal and the Obscene Articles Tribunal.

Court of Final Appeal

TheJoint Declaration and theBasic Law specifically guarantee the establishment on 1 July 1997 of a Hong Kong based Court of Final Appeal, and this replaced the Judicial Committee of the Privy Council in London as the final appellate court for Hong Kong. It has jurisdiction conferred on it by the Hong Kong Court of Final Appeal Ordinance (Cap 484).

Under the provisions in the Basic Law and the Hong Kong Court of Final Appeal Ordinance (Cap 484), the judges of the Court of Final Appeal are appointed by the Chief Executive, in accordance with the recommendations of an independent commission, and those appointments must be endorsed by the legislature.

The Hong Kong Court of Final Appeal Ordinance provides that an appeal shall be heard and determined by the Court constituting the Chief Justice, three permanent judges and one non-permanent Hong Kong judge or one judge from another common law jurisdiction.

[top]Legal system in China versus Hong Kong

The legal system in China - The interface between Hong Kong and the Mainland legal system

Information based on the Departmental publication "Legal System in Hong Kong" printed in 2008

The legal system in Mainland China is based on the constitution of the People's Republic of China (the PRC). The highest state organ of the PRC is the National People's Congress which exercises powers to amend the constitution, to enact and amend the more important laws, to appoint and remove the most important state officials, to approve government budgets, to approve national development plans and to supervise other state organs such as the Standing Committee of the National People's Congress, the State Council, the Supreme People's Court and the Supreme People's Procuratorate. The Standing Committee of the National People's Congress exercises powers as listed in the constitution, such as the power to interpret the constitution and law, to enact and amend laws and to approve international treaties entered into by the government.

The State Council (the Central People's Government) is the highest executive organ in the Mainland. Under the State Council, there are various ministries and commissions responsible for different tasks and administrative work. The State Council is also responsible for directing and supervising the work of the local people's governments at various levels. In the Mainland, the Supreme People's Court, together with lower people's courts, adjudicates cases, whereas the Supreme People's Procuratorate, together with lower people's procuratorates, is responsible for approving arrest, instituting and conducting prosecutions, investigating a number of specific cases provided by law and exercising the power of legal supervision over the judgments of the people's courts.

Laws in the Mainland are enacted by the National People's Congress and its Standing Committee, whereas the State Council is authorised to issue administrative regulations. Local people's congresses may enact local regulations according to their needs, provided that such regulations do not contradict the constitution, the laws or the administrative regulations. Ministries and Commissions under the State Council, as well as local people's governments, may issue rules in implementing laws and administrative regulations.

TheBasic Law of the HKSAR provides that the common law system shall continue in Hong Kong, and that the socialist system and policies shall not be practised there. National laws are not applicable in the HKSAR, except for those listed in Annex III to the Basic Law, which are confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the HKSAR. Likewise, the law applicable in the HKSAR, except for the Basic Law and the national laws listed in Annex III, is not applicable in the Mainland. Under the Basic Law, the Central People's Government may, after consulting with the government of the HKSAR, apply to the HKSAR international agreements to which China is a party. With the authorisation of the Central People's Government, international agreements to which China is not a party may also be implemented in the HKSAR.

Laws enacted by the legislature of the HKSAR are reported to the Standing Committee of the National People's Congress for the record. However, the reporting for record does not affect the entry into force of such laws. The Standing Committee may return a law so reported, after consulting the Basic Law Committee, on the ground that the law in question is not in conformity with the provisions of the Basic Law on matters within the responsibility of the Central Authorities, or with the provisions on the relationship between the Central Authorities and the HKSAR.

Courts in the HKSAR exercise independent judicial power, including the power of final adjudication. They are not subject to a superior court in the Mainland. In other words, judgments of Mainland courts are not binding on the courts of the HKSAR. Moreover, law enforcement departments of the Mainland cannot exercise any jurisdiction in the HKSAR.

[top]Legal help

Legal Services Providers in Hong Kong and Macau

List of Attorneys / Law Firms in Hong Kong (Criminal Matters)

Alan Ho & Co.
Room 1323A, Landmark North,
39 Lung Sum Ave., Sheung Shui,
New Territories, Hong Kong,
Tel: 2639-9798
Fax: 2639-2730
Email: alanhoco@netvigator.com

Anthony M.F. Ko & Co.
Rooms 1003-1004,
Yuen Long Centre,
55 Sau Fu Street, Yuen Long
New Territories, Hong Kong
Tel: 2475-2878
Fax: 2477-2990
Email: amfko@on-nets.com

B. Manek & Co.
1801-1802, 18/F Nathan Centre
580 G/K Nathan Road
Mongkok, Kowloon
Tel: 2390-7418
Fax: 2391-4432
Mobile: 9081-2610

Boase Cohen & Collins
2303-7, Dominion Centre,
43-59 Queen's Road East,
Wanchai, Hong Kong
Tel: 3416-1711
Fax: 2529-5035
Email: colin@boasecohencollins.com

Chin & Associates
Unit B/C, 10/F Sun House,
181 Des Voeux Road,
Central, Hong Kong
Tel: 8100-2600
Fax: 8200-4838
Email: info@lawyerchin.com
Website: Chin & Associates, Solicitors

Elaine Tam & Co.
Room 1201, 12/F,
Far East Consortium Building,
121 Des Voeux Road Central, Hong Kong
Tel: 2541-0728
Fax: 2542-4017
Email: info@elainetam.com

Fairbairn Catley Low & Kong
23/F, Shui On Centre,
6-8 Harbour Road, Hong Kong
Tel: 2522-2041, 2532-5489
Fax: 2845-9282, 2845-2928
Email: bkong@fclklaw.com.hk
Website: Welcome to Fairbairn Catley Low and Kong

Fred Kan & Co.
Rooms 3104-7, 31/F., Central Plaza,
18 Harbour Road,
Wanchai, Hong Kong
Tel: 2598-1318
Fax: 2588-1318
Email: ka-chung@fredkan.com
Website: www.fredkan.com

Gallant Y.T. Ho & Co.
5/F Jardine House,
1 Connaught Place,
Hong Kong
Tel: 2526-3336
Fax: 2845-9294
Email: gyth@gallantho.com

Hobson & Ma
13/F Tower 2, New World Tower,
18 Queen's Road,
Central, Hong Kong
Tel: 2801-5383
Fax: 2877-2662
Email: bma@hobsonbma.com.hk

Littlewoods
14/F Hang Seng Mongkok Building,
677 Nathan Road,
Kowloon
Tel: 2397-3354
Fax: 2390-3354
Email: blittle@netvigator.com

S.Y. Fung
Flat D, 10/F,
Full Win Commercial Centre,
573 Nathan Road, Mongkok,
Kowloon, Hong Kong
Tel: 2782-1383
Fax: 2782-1387
Email: info@syfung.com.hk
Website: attorney.com

T.C. Lau & Co.
501, China Insurance Group Building,
11 Des Voeux Road Central,
Hong Kong
Tel: 2521-1488
Fax: 2851-8662

Vidler & Co.
10/F, Effectual Building,
14-16 Hennessy Road,
Wanchai, Hong Kong
Tel: 2836-3369
Fax: 2836-5138
Email: mvidler@vidler-co.com
Website: Welcome to the Vidler & Co website

Weir & Associates
16/F Tak Shing House, Theater Lane,
20 Des Voeux Road
Central, Hong Kong
Tel: 2526-1767
Fax: 2868-3568
Email: weirlaw@hongkonglaw.com

Yu, Tsang & Loong
Rooms 506-9, Yu To Sang Building,
37 Queen's Road Central,
Hong Kong
Tel: 2525-0111
Fax: 2810-6958


Sources:

1) Department of Justice of the Hong Kong Special Administrative Region

http://www.doj.gov.hk/eng/legal/index.htm



Wong Yan Lung, SC, JP
Secretary for Justice


2) The U.S. Consulate General in Hong Kong

http://hongkong.usconsulate.gov/acs_...almatters.html



How to Update Wiki

The Law Wiki is still very new and so it's a great time to jump in and start updating it and learning how to use it. You really can't mess anything up, because all revisions are stored and can be rolled back by a moderator, so play away and you can help make this a great resource for WORLDLawDirect visitors.

[forum_admin]

Vidler & Co.

10/F, Effectual Building,
14-16 Hennessy Road,
Wanchai, Hong Kong
Tel: 2836-3369
Fax: 2836-5138
Email: mvidler@vidler-co.com
Website: Welcome to the Vidler & Co website

About

Michael Vidler | Managing Proprietor of Vidler & Co Solicitors

Michael Vidler is a solicitor advocate who has practiced law in the United Kingdom and Hong Kong, since 1989.

He established the Hong Kong based law firm of Vidler & Co Solicitors which specializes in litigation, primarily in the areas of criminal law and public law but also handles non-contentious matters.
Prior to establishing Vidler & Company, Michael was a consultant solicitor with the Hong Kong firm of Barnes & Daly renowned for their work on human rights based cases.
Before coming to Hong Kong in 1992 when he was admitted as a solicitor of the High Court of Hong Kong, he trained and started his professional career as a solicitor advocate at Duthie Hart & Duthie, one of the largest criminal legal aid practices in London.
He was admitted as a Solicitor of the Supreme Court of England and Wales in 1990 having completing his the Law Society Finals Examinations in Nottingham and was awarded a Bachelor of Laws from the University of Leeds in the U.K.

[forum_admin]

Chin & Associates

Unit B/C, 10/F Sun House,
181 Des Voeux Road,
Central, Hong Kong
Tel: 8100-2600
Fax: 8200-4838
Email: info@lawyerchin.com
Website: Chin & Associates, Solicitors

About

Our Criminal Litigation Team has accrued considerable hands-on experiences and we had handled several landmark cases. We pride ourselves in possessing deep knowledge of the criminal law and procedure and, more importantly, we pay meticulous attention to every detail of client's case so as to formulate a most effective defence strategy.

Services include:

• providing advice on criminal law and procedure before and after charge;
• attending Police, ICAC and other law enforcement agencies with clients;
• entering into plea bargaining for clients before or after charge;
• application for bail before trial or pending appeal;
• conducting investigation and evidence gathering before trial;
• conducting defence at all levels of courts from Magistracy to the High Court;
• conducting appeals at all levels of courts up to the Court of Final Appeal; and
• conducting mitigation for clients.