Law of Hong Kong

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The law of the Hong Kong Special Administrative Region has its foundation in the English common law system, inherited from being a former British colony and dependent territory. There are several sources of law, the primary ones being statutes enacted by the Legislative Council of Hong Kong and case law made by decisions of the courts of Hong Kong.

Contents

Since the handover in 1997, the constitutional framework is provided by the Hong Kong Basic Law, which is a piece of National Law of the People's Republic of China and has, practically, constitutional status in Hong Kong. The principle of ‘one country, two systems’ was enshrined in Article 5 of the Basic Law until at least 2047, which contrasts the ‘socialist system and policies’ and ‘the previous capitalist system and way of life’.

The Basic Law provides that the common law system shall be maintained. Some commentators described the theoretically hybrid system of civil law and common law as unique, [1] although there are similar arrangements all over the world. Other commentators point to the socialist law tradition instead of the civil law tradition.

Primary legislation in Hong Kong are usually known as ‘Ordinances’, instead of ‘Acts’. The published, consolidated copies of Ordinances are given chapter numbers in Laws of Hong Kong and in the official online database.

Some National Laws on foreign affairs and the national flag apply directly in Hong Kong by virtue of stipulations in Article 18 and Annex III of the Basic Law. [2] The imposition of the National Law on Safeguarding National Security in the HKSAR has been authorized by a National People's Congress Decision which, in a practical sense, overrides the Basic Law.

History and the Basic Law

Hong Kong's legal system was developed under British governance, based on the English common law. Under British rule, the constitutional documents that governed Hong Kong were the Letters Patent and the Royal Instructions, and judicial cases were generally appealable to the Judicial Committee of the Privy Council in the UK. [3]

In the 1984 Sino-British Joint Declaration, the UK and the PRC mutually agreed that Hong Kong would be returned to China after 1997. Hong Kong would be governed by the "one country, two systems" principle, under which Hong Kong's previous capitalist system and way of life, including the legal system, would remain unchanged for a period of 50 years until 2047. [3]

The Hong Kong Basic Law, which is a law passed by the Chinese National People's Congress, came into effect in 1997, becoming the constitutional document in Hong Kong. [4] The law was passed in accordance with Article 31 of the Chinese Constitution, which authorized the establishment of Special Administrative Regions. The Basic Law sets out the status of Hong Kong as a Special Administrative Region of the PRC, the one country, two systems principle, the political structure of Hong Kong, and the rights of duties of Hong Kong residents. [3]

Administrative law

Administrative law in Hong Kong is heavily modelled on its counterpart in England and Wales, especially the law of judicial review. This applies both to the procedure and grounds of judicial review, though there is some divergence in various areas. Some aspects of administrative law, for example administrative tribunals, were originally modelled on their counterparts in England and Wales but have not been systematically reformed for decades. [5]

Constitutional law

The Hong Kong Basic Law contains the essentials of the constitutional framework in the Hong Kong Special Administrative Region. Article 8 stipulates that all laws in force before 1997, including

the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.

Article 18 states, further, that national laws, from the People's Republic of China do not apply, except for a specific list in Annex III to the Basic Law, to which the Standing Committee of the National People's Congress can add or delete what it chooses. However, this may only be in the fields of "defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law". It also has a derogation, in a war situation, for a state of emergency to be declared.

Hence, the laws in force are in hierarchical order are The Hong Kong Basic Law; legislation in force before 1 July 1997 that was adopted as laws of the HKSAR by the Standing Committee of the National People's Congress; laws enacted by the Legislative Council of Hong Kong after 1997; and PRC laws listed in Annex III to the Basic Law and applied by way of promulgation or legislation; common law and equity; subordinate legislation; customary law.

Currently, twelve PRC laws apply in the HKSAR. These national laws apply in Hong Kong by the Hong Kong legislature legislating on the same matter: for example, the Law of the People's Republic of China on the National Flag, a Chinese statute, takes effect in Hong Kong in form of the National Flag and National Emblem Ordinance, a local statute enacted by the local legislature.

The Basic Law contains provisions that offer protection for human rights. Any laws that contravene the Basic Law are unconstitutional and are of no effect. Hong Kong has a Bill of Rights Ordinance which is the local adaptation of the International Covenant of Civil and Political Rights. Laws have been passed to ensure the human rights protected in the Basic Law and the Bill of Rights, such as the Personal Data (Privacy) Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance, Sex Discrimination Ordinance and Race Discrimination Ordinance.

Contracts and obligations

The law in relation to unfair contract clauses is embodied in the Unconscionable Contracts Ordinance (UCO), Cap 458. Section 6(1) lists a number of factors which may be relevant to a consideration of "unconscionability".

In a 2003 ruling on Shum Kit Ching v Caesar Beauty Centre Ltd., HCSA 38/2002, it was held that, in determining whether a contract is unconscionable for the purposes of section 5 of the UCO, the court must have regard to "all circumstances" relevant to that issue, as well as the factors listed in section 6(1). The Hong Kong Consumer Council has commented that this ruling leads the court "to tend to focus on the totality of the circumstances and conduct that give rise to unfairness in the bargaining process rather than the meaning and effect of the term alone". In this case, the beauty centre issued terms which stated the full cost of a treatment would be forfeited if an appointment was cancelled. The court held that "loss" was limited to "loss of profit" and therefore the total treatment cost could not be treated as a genuine pre-estimate of loss. [6]

Criminal law

Family law

Family law in Hong Kong is heavily modelled on its counterpart in England and Wales with important modifications.

Ancillary relief

Hong Kong does not have a statutory matrimonial property regime. There is no system of "community of property" and property rights are not in principle affected by marriage. Instead, the family courts have very broad discretion to make a range of financial orders upon a decree of divorce pursuant to the "Matrimonial Proceedings and Property Ordinance (Cap 192)", namely for: periodical payments, secured periodical payments, lump sum payments, transfers or sale of property, settlement of property (into a trust), and variation of settlements. Similarly, there are powers to make orders for maintenance pending suit once divorce proceedings have begun. These are interim measures that will end once the final divorce decree is granted. In making final financial orders in favour of a spouse, courts are guided by four principles: (i) the objective of fairness, (ii) rejection of discrimination, (iii) the yardstick of equal division, and (iv) rejection of minute retrospective investigation (see "LKW v DD" [2010] HKCFA 70; [2010] 6 HKC 528). They are also required to consider the following non-exhaustive list of factors (see section 7(1) of the Matrimonial Proceedings and Property Ordinance (Cap 192). [7]

Child custody

The family courts have broad jurisdiction to deal with the welfare of children under the provisions of the "Guardianship of Minors Ordinance (Cap 13)", the "Separation and Maintenance Orders Ordinance (Cap 16)", the "Matrimonial Causes Ordinance (Cap 179)" and the "Matrimonial Proceedings and Property Ordinance (Cap 192)". Additionally, the High Court's has broad powers under its inherent jurisdiction including wardship. In parental disputes, generally the courts are concerned with making orders for custody, care and control, and access. These orders are distinct from questions of financial responsibility for children (i.e. "maintenance"). Access is the right to have contact with the child, it may be unsupervised or supervised (i.e. where there are concerns about the impact of contact on the child); undefined (sometimes "reasonable" or "generous") or defined (i.e. at times specified in the order); staying (a.k.a. overnight) or "day-time". Care and control is the right to make day-to-day decisions about the child; it should not be confused with "shared care" and the notion of the primary caregiver. Custody is the right to make all important decisions affecting the child and it is generally awarded to one parent ("sole custody") or shared between both parents ("joint custody"): see "PD v KWW (Joint Custody, Care and Control)" [2010] 4 HKLRD 191; [2010] HKCA 172. [8]

The paramount consideration for the court is always the welfare (or "best interests") of the child; this is known as the Welfare Principle (see section 3 of Cap 13). In determining the best interests of the child, the court will generally have regard to the Welfare Checklist, i.e. the ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding); the physical, emotional and educational needs of the child; the likely effect on the child of any change in the child's circumstances; the child's age, sex, background and any characteristics of the child's which the court considers relevant; any harm the child has suffered or is at risk of suffering; how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs; the range of powers available to the court in the proceedings in question; and the general principle that any delay is likely to prejudice the welfare of the child: see "H v N [2012] 5 HKLRD 498; [2012] HKCFI 1533". [8]

Divorce

The jurisdiction of the family courts to deal with divorce, separation and nullity of marriage is set out in the "Separation and Maintenance Orders Ordinance (Cap 16)" and the "Matrimonial Causes Ordinance (Cap 179)". [9]

Procedure and evidence

Business associations

Companies Registry

The Companies Registry (公司註冊處) is responsible for administering and enforcing the Companies Ordinance and several other related ordinances. Its primary functions include the incorporation of local companies; the registration of oversea companies; the registration of documents required to be submitted by registered companies; the deregistration of defunct, solvent private companies; the prosecution of companies and their officers for breaches of the various regulatory provisions of the Companies Ordinance; the provision of facilities to inspect and obtain company information; and advising the Government on policy and legislative issues regarding company law and related legislation, including the Overall Review of the Companies Ordinance.

Official Receiver's Office

When appointed by the court and creditors, the Official Receiver (破產管理署) is responsible for the proper and orderly administration of the estates of insolvent companies ordered to be wound up by the court under the winding-up provisions of the Companies Ordinance and of individuals or partners declared bankrupt by the court under the Bankruptcy Ordinance.

Labour law

Property law

The Land Registry

The Land Registry (土地註冊處) administers the Land Registration Ordinance governing the system of land registration and provides facilities for search of the Land Register and related records by the public and government departments. It has responsibility for the registration of owners corporations under the Building Management Ordinance.

The Legal Advisory and Conveyancing Office (LACO, 法律諮詢及田土轉易處) is part of the Lands Department. It provides legal advice primarily to the Lands Administration Office of the Lands Department and other government departments on land related matters and ordinances. LACO is responsible for drafting and settling government land disposal and lease modification documents. LACO is also responsible for the preparation of documentation relating to the acquisition of land from private owners pursuant to statutory powers and the payment of compensation to those owners. LACO administers the Lands Department Consent Scheme to approve applications by developers to sell flats in uncompleted developments. It also approves Deeds of Mutual Covenant requiring approval under land leases. LACO also provides conveyancing services to the Financial Secretary Incorporated for the extension of non-renewable leases, the Government Property Agency for the sale and purchase of government properties and the Secretary for Home Affairs Incorporated for the purchase of accommodation for welfare purposes in private developments. It handles applications for the apportionment of premium and government rents under the Government Rent and Premium (Apportionment) Ordinance. In addition, it is responsible for the recovery of arrears of government rents other than rents under the Government Rent (Assessment and Collection) Ordinance.

Intellectual Property Department

The Intellectual Property Department (知識產權署) serves as the focal point for intellectual property policy, law and acquisition and public education on intellectual property protection. It provides expert policy advice to the Commerce, Industry and Technology Bureau and legal advice to other government departments on intellectual property. It comments on draft intellectual property bills. It operates the registries of trade marks, patents and designs. It is also responsible for registration of copyright licensing bodies.

International co-operation

Under the Basic Law, the HKSAR has a high degree of autonomy in external affairs. With the authority of the Central People's Government where necessary, it has concluded more than a hundred bilateral agreements with other jurisdictions. In addition, over 200 multilateral international conventions are applicable to the HKSAR. Using the name "Hong Kong, China", the HKSAR also participates on its own as a full member in international organisations and conferences not limited to states, e.g. the World Trade Organization, the World Customs Organization, the Asia-Pacific Economic Cooperation, etc. As part of the delegation of the People's Republic of China, representatives of the HKSAR Government participate in activities of the Hague Conference, as well as of other international organisations and conferences limited to states, such as the International Monetary Fund, the World Intellectual Property Organization and the International Civil Aviation Organization.

Institutions

The judiciary (司法機構)

The Hong Kong Court of Final Appeal Court of Final Appeal Building.jpg
The Hong Kong Court of Final Appeal

It is fundamental to Hong Kong's legal system that members of the judiciary are independent of the executive and legislative branches of government. The courts of justice in Hong Kong are the Court of Final Appeal, the High Court (which includes the Court of Appeal and the Court of First Instance), the District Court (which includes the Family Court), the Lands Tribunal, the Magistrates' Court (which include the Juvenile Court), the Coroner's Court, the Labour Tribunal, the Small Claims Tribunal and the Obscene Articles Tribunal.

Department of Justice (律政司)

The Department of Justice (DOJ) It consists of five professional divisions responsible for legal work. It is headed by the Secretary for Justice, who is a member of the Executive Council and is the Government's chief legal adviser. He has ultimate responsibility for the prosecution of all offences in the HKSAR.

Law Reform Commission (法律改革委員會)

The Law Reform Commission considers and reports on such topics as may be referred to it by the Secretary for Justice or the Chief Justice of the Court of Final Appeal of the HKSAR. Its membership includes academics, practising lawyers and prominent community members. The commission has published reports covering subjects as diverse as commercial arbitration, data protection, divorce, sale of goods and supply of services, insolvency, fraud and statutory interpretation. The recommendations in many of its reports have been implemented, either in whole or in part. It is currently considering references on privacy, guardianship and custody, domicile, privity of contract, advance directives, hearsay in criminal proceedings and conditional fees.

In Hong Kong, the legal profession consists of both solicitors and barristers. As of 31 December 2015, there were at least 8,647 practising solicitors and 777 local law firms, plus some 77 foreign law firms, 1,299 registered foreign lawyers. And there were at least 1,378 practising barristers in 135 chambers. [10] [11] [12] [13]

Even prior to the transfer of sovereignty over Hong Kong, Hong Kong's legal profession was open to foreign law firms allowing foreign firms to establish a much earlier foothold in Hong Kong than in the People's Republic of China. Only on 1 July 1992, in contrast, did the PRC government open her legal services market to foreign law firms when the Ministry of Justice issued the Provisional Regulation of Establishment of Offices by Foreign Law Firms regulation. [14] Thus all of the Magic Circle law firms as well as major U.S. law firms have large presences in Hong Kong.

While foreign law firms face much less strict regulations than they would in the People's Republic of China due to the "one country, two systems" rule, they have seen increasing competition from local firms as PRC firms have become more sophisticated. According to Asia Law & Business, the top foreign Hong Kong law firm of 2007 was Johnson Stokes & Master (now Mayer Brown JSM) [15] while the top PRC law firm was King & Wood PRC Lawyers. [16] Chinese firms have seen rapid growth in Hong Kong in the past several years after reunification.

The legal bodies governing the conduct of solicitors and barristers are the Law Society of Hong Kong and the Hong Kong Bar Association, respectively. There are currently three law schools offering the Postgraduate Certificate in Laws, required for starting work as a trainee solicitor or pupil barrister.

The Director of Legal Aid is responsible for the administration of Home Affairs Bureau after 1 July 2007. Eligible persons are provided with legal representation depending on their financial circumstances.

Civil cases

Legal aid is available for civil proceedings in the District Court, the Court of First Instance and the Court of Appeal (both part of the High Court), and the Court of Final Appeal. It also covers proceedings in some tribunals and certain Coroner's Court cases. An applicant must satisfy both a 'means test' and a 'merits test'. For the means test, a person whose total financial resources do not exceed $155,800 may be granted legal aid. The Director of Legal Aid may waive the upper financial limit in meritorious cases when a breach of the Hong Kong Bill of Rights or inconsistency with the International Covenant on Civil and Political Rights as applied to Hong Kong is an issue. For the merits test, the Director must be satisfied that an applicant has reasonable grounds for bringing or defending the civil proceedings to which the application relates. A person aggrieved by a decision of the Director may appeal to the Registrar of the High Court.

Criminal cases

Legal aid is available for committal proceedings in the Magistrates' Courts; cases tried in the District Court and the Court of First Instance of the High Court; and appeals from the Magistrates' Courts, and to the Court of Appeal of the High Court or the Court of Final Appeal. An applicant must satisfy the means test criteria which are the same as for civil cases. Notwithstanding that an applicant's financial resources exceed the statutory limit, the Director of Legal Aid may grant legal aid to the applicant if the Director is satisfied that it is desirable in the interests of justice to do so. However, in appeal cases, the Director of Legal Aid must be satisfied that there are meritorious grounds for appeal with a reasonable prospect of success. Notwithstanding the refusal of a legal aid application by the Director of Legal Aid, a judge may himself grant aid if the applicant has satisfied the means test. Applicants in cases involving a charge of murder, treason, or piracy with violence may apply to a judge for granting of legal aid, and exemption from the means test and from payment of contribution.

This scheme provides legal representation to the sandwich class whose financial resources are above the upper eligibility limit for legal aid (i.e. $155,800) but do not exceed $432,900. It covers cases involving personal injury or death, as well as medical, dental or legal professional negligence, where the claim for damages is likely to exceed $60,000. The scheme also covers claims under the Employees' Compensation Ordinance irrespective of the amount of the claim.

The Duty Lawyer Service (當值律師服務)

Three programmes of legal assistance, jointly administered by the Law Society and the Bar Association of Hong Kong, are subvented by the Government. The Duty Lawyer Scheme rosters barristers and solicitors in private practice to appear in the Magistrates and Juvenile Courts on a remunerated basis. The scheme provides representation to all juveniles (defendants under 16) and to most adult defendants charged in the Magistrates' Courts who cannot afford private representation. The defendants are required to pay a handling charge of $570 upon granting of Duty Lawyer representation. In 2018, 22,546 defendants were assisted. The Free Legal Advice Scheme, staffed by over 1,126 volunteer lawyers, operates 12 sessions per week at nine evening centres. In 2018, 6,953 cases were handled. The scheme is not means tested. A free Tel-Law Service offers trilingual (Cantonese, Putonghua and English) taped information on 80 topics. Eight telephone lines operate 24 hours. In 2018, 16,439 calls were received. [17]

See also

Related Research Articles

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References

  1. ↑ Lo, Stefan H. C.; Cheng, Kevin Kwok-yin; Chui, Wing Hong (19 December 2019). The Hong Kong Legal System (2nd ed.). Cambridge University Press. doi:10.1017/9781108634687.001. ISBN   978-1-108-63468-7.
  2. ↑ "Basic Law Full Text - annex (3)". www.basiclaw.gov.hk. Archived from the original on 1 December 2017. Retrieved 9 April 2018.
  3. 1 2 3 Xianggang fa gai lun. Chen, Hongyi, 1957-, Zhang, Zengping, Chan, Man-mun, Johannes, Li, Xuejing, 陳弘毅, 1957-, 張增平 (Di san ban ed.). Xianggang. 8 September 2015. ISBN   978-962-04-3728-1. OCLC   930832628.{{cite book}}: CS1 maint: location missing publisher (link) CS1 maint: others (link)
  4. ↑ Chen, Hongyi; 陳弘毅 (30 April 2014). Yi guo liang zhi xia Xianggang de fa zhi tan suo (Chu ban, zeng ding ban ed.). Xianggang. ISBN   978-988-8263-75-2. OCLC   880666808.{{cite book}}: CS1 maint: location missing publisher (link)
  5. ↑ (Lawyer), Thomson, Stephen (11 October 2018). Administrative law in Hong Kong. Cambridge [UK]. ISBN   9781108400329. OCLC   1025360202.{{cite book}}: CS1 maint: location missing publisher (link) CS1 maint: multiple names: authors list (link)
  6. ↑ Mason, L., INADEQUACY AND INEFFECTUALITY: HONG KONG'S CONSUMER PROTECTION REGIME AGAINST UNFAIR TERMS IN STANDARD FORM CONTRACTS, 2014 HKLJ volume 44, part 1, pp 83-93, accessed 8 May 2024
  7. ↑ Marwah, Azan (2019). Duxbury Etc, Hong Kong Family Court Tables (1st ed.). Hong Kong: Hong Kong Family Law Association. p. 11.
  8. 1 2 Marwah, Azan (2019). Duxbury Etc, Hong Kong Family Court Tables (1st ed.). Hong Kong: Hong Kong Family Law Association. p. 13.
  9. ↑ Marwah, Azan (2019). Duxbury Etc, Hong Kong Family Court Tables (1st ed.). Hong Kong: Hong Kong Family Law Association. p. 14.
  10. ↑ "The Law Society of Hong Kong". www.hklawsoc.org.hk. Retrieved 9 April 2018.
  11. ↑ "Bar List (Senior Counsel) - Hong Kong Bar Association". www.hkba.org. Retrieved 9 April 2018.
  12. ↑ "Bar List (Junior Counsel) - Hong Kong Bar Association". www.hkba.org. Retrieved 9 April 2018.
  13. ↑ "Counsel's Chambers". www.hkba.org. Hong Kong Bar Association. Retrieved 9 April 2018.
  14. ↑ The Internationalization of China's Legal Services Market Archived 2002-08-21 at archive.today
  15. ↑ Kwong, Robin (21 December 2007). "Mayer Brown merging with Hong Kong's JSM". Financial Times. Retrieved 9 April 2018.
  16. ↑ ALB Hong Kong Law Awards Archived 2008-02-24 at the Wayback Machine
  17. ↑ "Annual Report 2018". The Duty Lawyer Service.
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