Law of Hong Kong


Law of Hong Kong

The law of Hong Kong is based on the rule of law and the independence of the Judiciary. The constitutional framework for the legal system is provided by the Hong Kong Basic Law Under the principle of ‘one country, two systems’, the Hong Kong Special Administrative Region (HKSAR) legal system, which is different from that of the legal system of Mainland China (Law of the People's Republic of China), is based on the English common law, supplemented by local legislation.

Hong Kong Basic Law, in this respect, is similar to the common law systems used in English Canadian provinces. Mainland Chinese law uses a civil law system also found in France (Law in France) and the French-speaking Canadian province of Quebec (Quebec law).

Laws

The laws in force are:
*The Hong Kong Basic Law;
*National laws listed in Annex III to the Basic Law;
*The laws in force before July 1, 1997, that were adopted as laws of the HKSAR by the Standing Committee of the National People's Congress; and
*Laws enacted by the legislature of the HKSAR.

National laws relating to defence, foreign affairs and other matters outside the limits of the autonomy of the HKSAR may be applied locally by way of promulgation or legislation by the HKSAR. Currently, 11 national laws apply in the HKSAR.

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 comprise 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.
*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 Chinese and English, and assists in steering legislation through the Executive and Legislative Councils. It also has editorial responsibility for the Laws of Hong Kong and 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.
*Counsel of the Prosecutions Division conduct most criminal appeals up to and including the Court of Final Appeal. They also conduct the majority of trials in the Court of First Instance and the District Court and, when necessary, they prosecute in the Magistrates’ Court. The division also provides legal advice to law enforcement agencies and other government departments.
*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

As at September 2003, there are 840 practising barristers, 5,165 practising solicitors and 652 local law firms, plus some 33 foreign law firms, 627 registered foreign lawyers and six registered associations between foreign law firms and local law firms in Hong Kong.

Even prior to the return of Hong Kong to the People's Republic of China, 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 mainland China. Only on July 1, 1992, in contrast, did the Chinese government open the mainland 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. [ [http://www.oycf.org/Perspectives/6_063000/internationalization_of_china.htm The Internationalization of China's Legal Services Market ] ] Thus every Magic Circle (law) law firm as well as the major U.S. law firms such as Baker & McKenzie and Skadden, Arps, Slate, Meagher & Flom have large presences in Hong Kong.

While foreign law firms face much less strict regulations than they would in the mainland due to the "one country, two systems" rule, they have seen increasing competition from local firms as Chinese firms have become more sophisticated. According to Asia Law & Business, the top foreign Hong Kong law firm of 2007 Johnson Stokes & Master (now Mayer Brown JSM) [ [http://www.ft.com/cms/s/0/83e92ccc-af6b-11dc-880f-0000779fd2ac.html FT.com / Companies / Asia-Pacific - Mayer Brown merging with Hong Kong’s JSM ] ] while top PRC law firm was King & Wood PRC Lawyers. [ [http://www.albawards.com/hk_07/ ALB Hong Kong Law Awards ] ] Chinese firms have seen rapid growth in Hong Kong in the past several years after reunification.

Legal bodies governing the conduct of solicitors and barristers are the Law Society of Hong Kong and the Hong Kong Bar Association, respectively.

Legal Aid Department (法律援助署)

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

Legal aid for 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.

Legal aid for 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.

upplementary 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 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 $300 upon granting of Duty Lawyer representation. In 2002, 45 162 defendants were assisted. The Legal Advice Scheme, staffed by over 840 volunteer lawyers, operates 10 sessions per week at nine evening centres. In 2002, 6 084 cases were handled. The scheme is not means tested. A free Tel-Law Service offers trilingual (Cantonese, Putonghua and English) taped information on 73 topics. Eight telephone lines operate 24 hours. In 2002, 51 058 calls were received.

The Land Registry (土地註冊處)

The Land Registry 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 (法律諮詢及田土轉易處)

The Legal Advisory and Conveyancing Office (LACO) 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.

Companies Registry (公司註冊處)

The Companies Registry 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 (破產管理署)

When appointed by the court and creditors, the Official Receiver 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.

Intellectual Property Department (知識產權署)

The Intellectual Property Department 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.

Best judicial system in Asia

The September 14, 2008, Political and Economic Risk Consultancy (PERC) survey reported Hong Kong and Singapore have the best judicial systems in Asia, with Indonesia and Vietnam the worst: Hong Kong's judicial sytem scored 1.45 on the scale (zero representing the best performance and 10 the worst); Singapore with a grade of 1.92, followed by Japan (3.50), South Korea (4.62), Taiwan (4.93), the Philippines (6.10), Malaysia (6.47), India (6.50), Thailand (7.00), China (7.25), Vietnam's (8.10) and Indonesia (8.26). [ [http://afp.google.com/article/ALeqM5gIkKvk-YnNQ1HVb2n_HUUMhncDLA afp.google.com/article, Hong Kong has best judicial system in Asia: business survey] ] [ [http://www.abs-cbnnews.com/world/09/15/08/hong-kong-has-best-judicial-system-asia-business-survey www.abs-cbnnews.com, Hong Kong has best judicial system in Asia: business survey] ]

References

ee also

*Legal systems of the world
*Judiciary of Hong Kong
*Law of the People's Republic of China
*Legal system of Macau
*Hong Kong Basic Law

External links

* [http://www.doj.gov.hk/eng/legal/index.htm The Legal System in Hong Kong] from the Hong Kong [http://www.doj.gov.hk Department of Justice] (2004).
* [http://www.legislation.gov.hk Database of ordinances of Hong Kong]
* [http://www.info.gov.hk/basic_law/fulltext/index.htm Full text of the Basic Law]
* [http://www.gld.gov.hk/cgi-bin/gld/egazette/ChkDisclaimer.cgi?lang=e&acurrentpage=3&agree=0&showcurrent=0&Submit=I+accept Government Gazette]
* [http://hklaw.ccgo.hksarg/eng/index.htm Bilingual Laws of Hong Kong]
* [http://www.hkreform.gov.hk Law Reform Commission of Hong Kong]
* [http://sunzi1.lib.hku.hk/bldho/ Basic Law Drafting History Online] -University of Hong Kong Libraries, Digital Initiatives
* [http://xml.lib.hku.hk/gsdl/db/oelawhk/search.shtml/ Historical Laws of Hong Kong Online] - University of Hong Kong Libraries, Digital Initiatives
* [http://www.hklii.org Hong Kong Legal Information Institute (HKLII)] - a project of China IT & Law Centre


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