Legal system of Hong Kong
Encyclopedia
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 legal framework of Hong Kong
is based on the English
common law
, supplemented by local legislation. The statute law is collected in a compilation called the Laws of Hong Kong. As a Special Administrative Region of the People's Republic of China, the Hong Kong legal system is significantly different from that of the People's Republic of China
(PRC). However, a small number of PRC laws, such as those involving national emblems and symbols, apply in Hong Kong by virtue of stipulations in Article 18 and Annex III of the Basic Law. They apply in Hong Kong by the Hong Kong legislature legislating on the same matter: for example, the Law About the National Flag of the People's Republic of China, a Chinese statute, does not apply to Hong Kong directly; it takes effect in Hong Kong in form of the National Flag and National Emblem Ordinance, a Hong Kong statute enacted by the Hong Kong legislature. The separation of the Hong Kong legal system to the PRC is guaranteed constitutionally until at least 2047.
The legal system in Hong Kong is therefore similar to the common law systems used in England and Wales
and other Commonwealth
countries. In contrast, the legal system of the People's Republic of China
is akin to those in Continental Europe
and the French-speaking
Canadian province of Québec
(Code civil du Québec) with influence from socialist law
. The Hong Kong judiciary has had a long reputation for its fairness and was recently rated as the best judicial system in Asia by a North Carolina think tank.
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, 12 PRC laws apply in the HKSAR.
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.
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.
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 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, patent
s and designs
. It is also responsible for registration of copyright
licensing bodies.
, 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
.
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.
, 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.
Even prior to the transfer of sovereignty of 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 July 1, 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.
Thus every Magic Circle
law firm 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 Johnson Stokes & Master
(now Mayer Brown JSM) while top PRC law firm was King & Wood PRC Lawyers. 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.
after July 1, 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.
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.
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and the independence of the judiciary
Judiciary of Hong Kong
The Judiciary of Hong Kong is responsible for the administration of justice in Hong Kong. It hears all prosecutions and civil disputes, including disputes between individuals and the government. It is fundamental to Hong Kong’s legal system that members of the judiciary are independent of the...
. The constitutional framework for the legal system is provided by the Hong Kong Basic Law
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
. Under the principle of ‘one country, two systems
One country, two systems
"One country, two systems" is an idea originally proposed by Deng Xiaoping, then Paramount Leader of the People's Republic of China , for the reunification of China during the early 1980s...
’, the legal framework of Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
is based on the English
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, supplemented by local legislation. The statute law is collected in a compilation called the Laws of Hong Kong. As a Special Administrative Region of the People's Republic of China, the Hong Kong legal system is significantly different from that of the People's Republic of China
Law of the People's Republic of China
Law of the People's Republic of China is the legal regime of the People's Republic of China, with the separate legal traditions and systems of Mainland China, Hong Kong, and Macau....
(PRC). However, a small number of PRC laws, such as those involving national emblems and symbols, apply in Hong Kong by virtue of stipulations in Article 18 and Annex III of the Basic Law. They apply in Hong Kong by the Hong Kong legislature legislating on the same matter: for example, the Law About the National Flag of the People's Republic of China, a Chinese statute, does not apply to Hong Kong directly; it takes effect in Hong Kong in form of the National Flag and National Emblem Ordinance, a Hong Kong statute enacted by the Hong Kong legislature. The separation of the Hong Kong legal system to the PRC is guaranteed constitutionally until at least 2047.
The legal system in Hong Kong is therefore similar to the common law systems used in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
and other Commonwealth
Commonwealth
Commonwealth is a traditional English term for a political community founded for the common good. Historically, it has sometimes been synonymous with "republic."More recently it has been used for fraternal associations of some sovereign nations...
countries. In contrast, the legal system of the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
is akin to those in Continental Europe
Continental Europe
Continental Europe, also referred to as mainland Europe or simply the Continent, is the continent of Europe, explicitly excluding European islands....
and the French-speaking
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
Canadian province of Québec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
(Code civil du Québec) with influence from socialist law
Socialist law
Socialist law denotes a general type of legal system which has been used in communist and formerly communist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology. There is controversy as to whether socialist law ever constituted a...
. The Hong Kong judiciary has had a long reputation for its fairness and was recently rated as the best judicial system in Asia by a North Carolina think tank.
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
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
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
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
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
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
; laws enacted by the Legislative Council of Hong Kong
Legislative Council of Hong Kong
The Legislative Council is the unicameral legislature of Hong Kong.-History:The Legislative Council of Hong Kong was set up in 1843 as a colonial legislature under British rule...
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, 12 PRC laws apply in the HKSAR.
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.
Criminal law
Procedure and Evidence
Business associations
Companies RegistryThe 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
Incorporation (business)
Incorporation is the forming of a new corporation . The corporation may be a business, a non-profit organisation, sports club, or a government of a new city or town...
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.
Property law
The Land RegistryThe Land Registry
Land Registry (Hong Kong)
In Hong Kong, the Land Registry is a government department under the Development Bureau responsible for the administration of land registration...
(土地註冊處) administers the Land Registration Ordinance governing the system of land registration
Land registration
Land registration generally describes systems by which matters concerning ownership, possession or other rights in land can be recorded to provide evidence of title, facilitate transactions and to prevent unlawful disposal...
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 conveyancing
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
services to the Financial Secretary
Financial Secretary (Hong Kong)
Financial Secretary , often abbreviated as FS, is a position of the Government of Hong Kong. The FS assists the Chief Executive in supervising the policy bureaux as directed by the CE, mostly finance and economy-related, and plays a key role in ensuring harmonisation in policy formulation and...
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
Secretary for Home Affairs
The Secretary for Home Affairs is the head of the Home Affairs Bureau of the Government of Hong Kong, which is responsible for local issues, and the provision of community, leisure, and cultural services.-List of office holders:*Donald Luddington 1971-1973...
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
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
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, patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s and designs
Industrial design rights
An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three...
. It is also responsible for registration of copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
licensing bodies.
- Hong Kong copyright lawHong Kong copyright lawCopyright law in Hong Kong to a great extent follows the English model. The Basic Law of Hong Kong, its constitutional document, guarantees a high degree of autonomy and continuation of laws previously in force after its reunification with Mainland China. Hong Kong therefore continues to maintain...
- Hong Kong trade mark law
- Patent law in Hong KongPatent law in Hong KongThe patent law in Hong Kong is based on the Hong Kong Patents Ordinance of 27 June 1997, as last amended on 22 February 2008. The Hong Kong patent system is independent from the patent system in the People's Republic of China , in that a "patent granted for Hong Kong SAR takes effect in Hong Kong...
Obligations
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 OrganizationWorld Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
, the World Customs Organization
World Customs Organization
The World Customs Organization is an intergovernmental organization headquartered in Brussels, Belgium. With its worldwide membership, the WCO is recognized as the voice of the global customs community...
, the Asia-Pacific Economic Cooperation
Asia-Pacific Economic Cooperation
Asia-Pacific Economic Cooperation is a forum for 21 Pacific Rim countries that seeks to promote free trade and economic cooperation throughout the Asia-Pacific region...
, 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
International Monetary Fund
The International Monetary Fund is an organization of 187 countries, working to foster global monetary cooperation, secure financial stability, facilitate international trade, promote high employment and sustainable economic growth, and reduce poverty around the world...
, the World Intellectual Property Organization
World Intellectual Property Organization
The World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
and the International Civil Aviation Organization
International Civil Aviation Organization
The International Civil Aviation Organization , pronounced , , is a specialized agency of the United Nations. It codifies the principles and techniques of international air navigation and fosters the planning and development of international air transport to ensure safe and orderly growth...
.
The judiciary (司法機構)
Magistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
(which include the Juvenile Court
Juvenile court
A juvenile court is a tribunal having special authority to try and pass judgments for crimes committed by children or adolescents who have not attained the age of majority...
), the Coroner’s Court
Coroner
A coroner is a government official who* Investigates human deaths* Determines cause of death* Issues death certificates* Maintains death records* Responds to deaths in mass disasters* Identifies unknown dead* Other functions depending on local laws...
, the Labour Tribunal, the Small Claims Tribunal
Small claims court
Small-claims courts have limited jurisdiction to hear civil cases between private litigants. Courts authorized to try small claims may also have other judicial functions, and the name by which such a court is known varies by jurisdiction; it may be known as a county or magistrate's court...
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 JusticeSecretary for Justice
The Secretary for Justice is a member of the Hong Kong Government responsible for prosecutions and legal matters. He or she heads the Department of Justice....
, who is a member of the Executive Council
Executive Council of Hong Kong
The Executive Council of Hong Kong is a core policy-making organ in the executive branch of the government of Hong Kong.. The Chief Executive of Hong Kong serves as its President.The Executive Council normally meets once a week...
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 ChinaPeople's Republic of ChinaChina , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
. 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 lawCivil law (common law)Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
, 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 ChineseChinese languageThe Chinese language is a language or language family consisting of varieties which are mutually intelligible to varying degrees. Originally the indigenous languages spoken by the Han Chinese in China, it forms one of the branches of Sino-Tibetan family of languages...
and EnglishEnglish languageEnglish is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
, and assists in steering legislation through the Executive and Legislative CouncilsLegislative Council of Hong KongThe Legislative Council is the unicameral legislature of Hong Kong.-History:The Legislative Council of Hong Kong was set up in 1843 as a colonial legislature under British rule...
. 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 of December 2008, there were at least 993 practising barristers, 6,205 practising solicitors and 712 local law firms, plus some 67 foreign law firms, 1,142 registered foreign lawyers and six registered associations between foreign law firms and local law firms in Hong Kong.Even prior to the transfer of sovereignty of 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 July 1, 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.
Thus every Magic Circle
Magic Circle (law)
The "Magic Circle" is an informal term used to collectively describe what are generally regarded to be the five leading UK-headquartered law firms and the four or five leading London-based commercial barristers' chambers.-Law firms:...
law firm 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 Johnson Stokes & Master
Johnson Stokes & Master
Johnson Stokes & Master was one of the oldest and largest law firms in Asia before it was combined into Mayer Brown on January 28, 2008 to become Mayer Brown JSM. JSM had offices in Hong Kong, where it was one of the leading law firms, and in Beijing, Guangzhou and Shanghai on mainland China, as...
(now Mayer Brown JSM) while top PRC law firm was King & Wood PRC Lawyers. 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
Hong Kong Bar Association
The Hong Kong Bar Association is the professional regulatory body for barristers in Hong Kong, and was founded in 1949. Like other professional bodies, the HKBA has the authority to take disciplinary action to the members who breach the Code of Conduct of the Association...
, respectively. There are currently three law schools offering the Postgraduate Certificate in Laws
Postgraduate Certificate in Laws
PCLL redirects here. For the lacrosse league in the northeastern United States, see Pioneer Collegiate Lacrosse League.The Postgraduate Certificate in Laws is an intensive one-year full-time professional legal qualification programme in Hong Kong...
, required for starting work as a trainee solicitor
Trainee solicitor
In the United Kingdom, Australia, Hong Kong and certain other English common law jurisdictions, a trainee solicitor is a prospective lawyer undergoing professional training at a law firm to qualify as a full-fledged solicitor...
or pupil barrister.
Legal Aid Department (法律援助署)
The Director of Legal Aid is responsible for the administration of Home Affairs BureauHome Affairs Bureau
Home Affairs Bureau is one of the policy bureaux of the Hong Kong Government.One of the important roles of the Home Affairs Bureau is to enhance liaison and communication with all sectors of the community including the Legislative Council and the general public.Tsang Tak-sing has been the...
after July 1, 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
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
or piracy
Piracy
Piracy is an act of robbery or criminal violence at sea. The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator...
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
Sandwich class
The sandwich class is an informal term used in Singapore and Hong Kong to refer to the middle class.Very generally, the sandwich class consists of lower middle class people who feel "squeezed" — although they are not poor, they are not able to achieve their aspirations as people with a higher...
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.See also
- Legal systems of the worldLegal systems of the worldThe legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
- Judiciary of Hong KongJudiciary of Hong KongThe Judiciary of Hong Kong is responsible for the administration of justice in Hong Kong. It hears all prosecutions and civil disputes, including disputes between individuals and the government. It is fundamental to Hong Kong’s legal system that members of the judiciary are independent of the...
- Law of the People's Republic of ChinaLaw of the People's Republic of ChinaLaw of the People's Republic of China is the legal regime of the People's Republic of China, with the separate legal traditions and systems of Mainland China, Hong Kong, and Macau....
- Legal system of MacauLegal system of MacauMacau law is broadly based on Portuguese law, and therefore part of the civil law tradition of continental European legal systems. Portuguese law is itself highly influenced by German law...
- Hong Kong Basic LawHong Kong Basic LawThe Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
External links
- The Legal System in Hong Kong from the Hong Kong Department of Justice (2004).
- Database of ordinances of Hong Kong
- Full text of the Basic Law
- Government Gazette
- Bilingual Laws of Hong Kong
- 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