Law of Hong Kong
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The law of the Hong Kong Special Administrative Region has its foundation in the
Since the
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]
Legal areas
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
Hence, the laws in force are in hierarchical order are
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
Criminal law
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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).[6]
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.[7]
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".[7]
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)".[8]
Procedure and evidence
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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
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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.
Legal Advisory and Conveyancing Office
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
Intellectual Property Department
The Intellectual Property Department (知識產權署) serves as the focal point for
- Hong Kong copyright law
- Hong Kong trade mark law
- Patent law in Hong Kong
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Obligations
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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)
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
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
- The Legal Policy Division, as well as the Secretary for Justice's Office, provides professional support to the Secretary for Justice in the execution of her duties and provides input on all legal policy issues being considered by the Government. The division advises on issues relating to the administration of justice, the legal system, the legal profession, human rights, the Basic Law and the law of Mainland China. The Law Reform Commission Secretariat, which provides research and secretarial support to The Law Reform Commission of Hong Kong, is within the division.
- The Civil Division provides legal advice to the Government on civil law, drafts commercial contracts and franchises and conducts civil litigation, arbitration and mediation on behalf of the Government.
- The Law Drafting Division is responsible for drafting all legislation, including subsidiary legislation, in Laws of Hong Kongand for maintaining an up-to-date version of those laws in the Bilingual Laws Information System, a computer database which is available free to the public on the Internet.
- The Prosecutions Division, headed by the Director of Public Prosecution, prosecutes trials and appeals on behalf of the HKSAR and generally exercises the Secretary for Justice's discretion whether or not to bring criminal proceedings against a person. It conducts most criminal appeals up to and including the Court of Final Appeal. It also conduct the majority of trials in the Court of First Instance and the District Court and, when necessary, it prosecutes in the Magistrates’ Court. The division also provides legal advice to law enforcement agencies and other government departments on the criminal law aspects of any proposed legislation.
- The International Law Division advises the Government on issues relating to public international law. Lawyers in this division also participate in the negotiation of agreements with other jurisdictions and handle requests to and from the HKSAR for international legal co-operation.
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.
The legal profession
In Hong Kong, the legal profession consists of both solicitors and barristers. As of 31 December 2015, there were at least 8,647 practising
Even prior to the
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
The legal bodies governing the conduct of solicitors and barristers are the
Legal Aid Department (法律援助署)
The Director of Legal Aid is responsible for the administration of
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.
Supplementary Legal Aid Scheme
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
See also
- Legal systems of the world
- Judiciary of Hong Kong
- Law of the People's Republic of China
- Legal system of Macao
- Hong Kong Basic Law
- Hong Kong national security law
References
- ISBN 978-1-108-63468-7.
- ^ "Basic Law Full Text - annex (3)". www.basiclaw.gov.hk. Archived from the original on 1 December 2017. Retrieved 9 April 2018.
- ^ )
- )
- OCLC 1025360202.)
{{cite book}}
: CS1 maint: location missing publisher (link) CS1 maint: multiple names: authors list (link - ^ Marwah, Azan (2019). Duxbury Etc, Hong Kong Family Court Tables (1st ed.). Hong Kong: Hong Kong Family Law Association. p. 11.
- ^ a b Marwah, Azan (2019). Duxbury Etc, Hong Kong Family Court Tables (1st ed.). Hong Kong: Hong Kong Family Law Association. p. 13.
- ^ Marwah, Azan (2019). Duxbury Etc, Hong Kong Family Court Tables (1st ed.). Hong Kong: Hong Kong Family Law Association. p. 14.
- ^ "The Law Society of Hong Kong". www.hklawsoc.org.hk. Retrieved 9 April 2018.
- ^ "Bar List (Senior Counsel) - Hong Kong Bar Association". www.hkba.org. Retrieved 9 April 2018.
- ^ "Bar List (Junior Counsel) - Hong Kong Bar Association". www.hkba.org. Retrieved 9 April 2018.
- ^ "Counsel's Chambers". www.hkba.org. Hong Kong Bar Association. Retrieved 9 April 2018.
- ^ The Internationalization of China's Legal Services Market Archived 2002-08-21 at archive.today
- ^ Kwong, Robin (21 December 2007). "Mayer Brown merging with Hong Kong's JSM". Financial Times. Retrieved 9 April 2018.
- ^ ALB Hong Kong Law Awards Archived 2008-02-24 at the Wayback Machine
- ^ "Annual Report 2018". The Duty Lawyer Service.
External links
- The Legal System in Hong Kong from the Hong Kong Department of Justice (2004).
- Hong Kong e-Legislation
- Full text of the Basic Law
- Government Gazette
- Law Reform Commission of Hong Kong
- Basic Law Drafting History Online -University of Hong Kong Libraries, Digital Initiatives
- Historical Laws of Hong Kong Online - University of Hong Kong Libraries, Digital Initiatives
- Hong Kong Legal Information Institute (HKLII) - a project of China IT & Law Centre
- "Hong Kong Family Court Tables" published by the Hong Kong Family Law Association, includes summary of Hong Kong family law principles, a guide to the recent case law and relevant statutes, and a glossary of relevant terms related to the Hong Kong family law.
- Comprehensive Hong Kong Law Resource - Resources, Articles, News, Discussions & Legal Directory
- The Sino-British Joint Declaration
- Basic Law Bulletin
- Law Drafting Division (1998). "Interpretation of Bilingual Legislation – A Paper Discussing Cases Where the Two Language Texts of an Enactment are Alleged to be Different". Retrieved 23 December 2020 – via Hong Kong e-Legislation.