Legal System

An overview of the Common Law System

Social functions of law:
1. Law prevents undesirable behavior and secures desirable behavior.
2. Law provides facilities for private arrangements between individuals.
3. Law provides services and redistributes goods.
4. Law settles disputes.
5. Law regulates its own creation and application.
6. Law communicates and reinforces social values.
Major legal systems in the world:
- common law system
- civil law system
- socialist law system
- religious law system
The common law system
- System of law originated from England and Wales since 1066 (law common
to the whole of England and Wales abolishment of regional and local law)
- Common law is described as decisional law.
- Common law can have different meanings when used in different senses.
1. It may refer to law which is not local law.
2. It may refer to a legal system in contrast to the codified or other systems.
3. It may refer to case law.
4. It may refer to one particular type of decisional law, to distinguish it from
another type called equity.
- Common law and equity are two separate systems of case-law. They are
distinguished not only by origin, but also by their nature.
- Origin:
Common law:
The law as administered by the Kings courts became the common
law of England and Wales.
3 principle courts administered justice independently from, but in
the name of the King: the Court of Kings Bench, the Court of
Exchequer and the Court of Common Pleas.
Equity:

Petitions to the King to exercise his prerogative in case of injustice

first dealt with by the King in Council, then by the Kings chief
minister, the Chancellor, later became formalized and dealt with in
the courts of equity, leading to the formal development of the
Court of Chancery, which was the principle forum for the
administration of the principles of equity until its abolition in 1875.

Nature:
Common law:
Apply in all or nothing basis.
Consolidating customary local rules into rules of general application,
or by gradual erosion of local rules themselves.
Administration of justice by the King himself.
Equity:
Discretionary.
It developed to ameliorate the harshness of common law, to provide
flexibility where the common law was rigid, and to satisfy a desire
for a different kind of justice. (to remedy the deficiencies of common
law)

Development of common law:

- Centralization of Administration of justice the King
- Writ system
Starting document to ask for the intervention of the case by the court
Determine the type of action taken
Over-emphasis on the rigidity of the procedures
Highly technical forms of action abolished by the Common Law
Procedure Acts 1852 and 1854
- Common law and equity
- Fusion of Jurisdictions: Supreme Court Judicature Acts 1873-1875
Feature of Common law separation of powers:
- Legislative, Executive and Judicial power
- Power of interpretation of statues (and common law) is vested in the
Judiciary, but not executive and legislative
- Independence of Judiciary
- A high status of Judiciary that is above prosecution and public security/law
enforcement agencies
- Legislative institution enacts law Legislative Council, CE in HK not

controlled by local populace

Judicial institution consists of courts and tribunals
Executive institution Executive Council (formulates policy for translation
into ordinances by legislation), the civil service, the police, the ICAC

Basic values underlying the common law system:

- Residual Principle: Everything that is not forbidden is lawful
- Absence of arbitrary power: governments power has to be derived from law
- Respect for individual rights and property rights: All suspects are presumed
to be innocent before proving guilty
- Due process: How to reach the result? (procedures, ensure fairness);
Voluntary confession statement; Prevent torturing to confession
- Equality before law
- Fair and impartial administration of justice: Criminal and civil justice system;
disciplinary proceedings
- Independence of Judiciary
Characteristics of Common Law:
- Case law approach
Refer to the reasoning of the judge for his judgment
Every single judgment and every single case is the source of law
Case law applied all over the world
Ever-growing
- Quality of judgment as an objective measure of judicial quality
- Doctrine of precedent
On the basis of the reasoning of the judge
- Hierarchy of court
CFA as the highest in HK
- Law reporting system
Finding precedents
Involving legal decision
Both official and unofficial
- Adversarial system (dominated by lawyers) v Inquisitorial system
(dominated by judges)
Adversarial system
Judge cannot take part in debate
In balance between two parties
Procedural fairness

Inquisitorial system
Judges take an active role carry out investigation
Civil law system
Practice in HKs Labour Tribunal and Small Claims Tribunal
Crucial Role of lawyers
Carry out investigation
Examination of witnesses in court (whereas in civil law, examination is
carried out by judges)
Presentation preparation
Importance of procedural law and law of evidence
Judge ensures the procedure and the evidence as a referee to ensure a
fair play
Judge observes the evidence and makes decisions
Principle of orality and burden of proof
Cross examination
Observed by the judge

Court system
- Court of Final Appeal
Exercised by 5 judges a Chief justice, 3 permanent judges, one judge
drawn from one or two panels
It may invites judges from other common law jurisdictions to sit
Leave to appeal is required and shall not be granted unless a point of
law of great and general importance is involved in the decision or it is
shown that substantial and grave injustice has been done
- Superior court
High court, previously called Supreme Court:
Court of Appeal
Operates in 3 three-judge division, each under a vice-president;
the Chief Judge is President of High Court, including the Court of
Appeal
Concerns only with technical arguments about the law
Court of First Instance
Civil and criminal jurisdictions
Applications for habeas corpus (important means of testing the
lawfulness of a persons detention
Judicial review
A judge + jury

District Court
Stands between magistracies/ certain tribunals and the Court of First
Instance
Civil jurisdictions: tort and contract
Debt, demand, damage claimed not more than $120000
Recovery of land: not more than $100000
Equitable jurisdiction: not more than $120000
A district judge sits alone: no jury
Cannot impose a term of imprisonment more than 7 years
Regional court ( Small Claims Tribunal)
Magistrates court
Dealt with minor crime
Make orders for the payment of civil debts, awards compensation not
exceeding $5000 and grant bail
Maximum sentence impose is two years in prison and a fine $10000
Constitutes juvenile courts
Coroners Court
Resolves doubts about deaths is official custody or suspicious
circumstances
Recommends how accidents can be avoided
3 coroners make up a Coroners Court
Lands Tribunal
Appeals go to CA but not CFI
Disputes between landlords and tenants, private lands
Formal; barristers usually act on behalf on claimants
Labour Tribunal
labour disputes: contracts of employments, rights of employees
Quick, informal and uncomplicated
In the presence of lawyers
Small Claims Tribunal
Small claims
Contract or tort: claimed not more than $15000
No barristers and solicitors allowed

Appointment and Removal of Judges:

- Qualification
- Judicial Officers Recommendation Commission

- Judges independent of the Executive and of other members of the Judiciary

- Public hearing
- Judgments and reasons for decisions
- Removal misconduct; reaching the retirement age
Statues
- Legislative process (1st, 2nd and 3rd reading and approval by the CE)
- Publication of bills in Gazette; law can only come into effect after publication
- Detailed drafting; less policy statements
- Bilingual Law Information System (BLIS) and Hong Kong Legal Information
Institute (HKLII)
- No temporary legislation; internal circular or guidance has no legal effect
Procedural Justice: Rule of natural justice
- the rule against bias => everyone has a right to know the charge and
evidence brought against he/she
- the right to be heard
- a duty to act fairly
- judicial review
The Rule of Law
A- Diceys view on the rule of law
1. excludes the existence of arbitrariness of prerogative, or even of wide
discretionary authority, thus none can be made to suffer penalties
except for a distinct breach of law established before the ordinary courts
eg. NO detention without trial
2. equality before the law: that no one was above the law, that no one was
above the law, that officials like private citizens were under a duty to
obey the same law
3. the law of constitution are not the source but the consequence of the
rights of individuals, as defined and enforced by the courts
Problems with his views:
1. Discretionary authority in most spheres of government is inevitable.
Attention should be put on establishing a system of legal safeguard by
which such power may be controlled.
2. The legislature m ust frequently distinguish between categories of

person by reference to economic or social consideration or legal status

we should invalidate legislation which distinguishes between citizens on
grounds which are irrelevant, unacceptable or offensive
B- Rule of Law and its limitation
1. Statements of the rule of law embody a preference for orderly life within
an organized community. Stability is a precondition for the existence of a
legal system. Dictatorship may maintain law and order, but the rule of
law will thrive only when legal restrains apply to the government.
Democracy in any sense of the word cannot exist without the rule of
law.
2. The government must be conducted according to the law and that in
disputed cases what the law requires is declared by judicial decision.
Public authorities must be subject to effective sanctions if they depart
from law.
3. The rule of law refers to a body of opinions, both about what powers the
government should have, and about the procedures to be followed when
action is taken by the state. Human dignity, liberty and democracy are
taken into account.
C- Rule of Law by Johannes Chan
The law itself
1. Solemn and based on reason
- the enactment of laws show clearly
2. Open to all
- laws are in order only after they are published by the government
3. Equality before the law
4. Consistency and stability
- judgement by lower courts are bound by upper courts
Judiciary
5. To do justice based on reason
- everything outside courts is not within the judges consideration
- judges remain impartial, especially judges avoid contacting lawyers or
witness prior to the end of the hearing
- judges write down his reasons of judgement
6. All hearings are open to public
- everyone has the right to monitor the judiciary
7. Respect for personal rights and liberty

only with adequate reasons can personal liberty be deprived (proportionality

test and necessity test)
common laws incline to protect personal rights, eg. Writ of habeas corpus
ambiguity in law -> judgement in favour of defendants
Anyone = innocent before convicted
Proof beyond reasonable doubt
Rights to submit evidence given to defendants

D- Platos view
If the law is the master of the government, and the government is its slave,
then the situation is full of promise
E- Aristotles view
Every human soul must have feeling, whereas a law has none
Respect for the law (the rule of law) guarantees the impartiality of the ruler by
preventing him exercising his power to pursue his own interests. It is because
the king does not make the law, the law makes the king.
Rousseau: You are always free when you submit to the laws, but not when you
submit to a man; for in the second case, I must obey the will of someone else,
whereas when I obey the laws, I am only complying with the public will, which
is as much mine as anyone elses.
Existence in history of tyrannies is, on the contrary, an empirical argument for
the excellence of the rule of law.
(1)All laws should be prospective, open and clear
- obscure & imprecise law is likely to mislead or confuse others.
(2)Laws should be relatively stable.
(3)The making of particular laws should be guided by open, stable, clear and
general rules.
- Particular legal orders are used by government to introduce flexibility into
the law.
- Two rules are noted: confer the necessary powers for making valid orders
and impose duties instructing the power-holders how to exercise their
powers.
(4)The independence of the judiciary must be guaranteed
- litigants can be guided if judges apply the law correctly

(5)Natural justice must be observed

(6)The courts should have review powers over implementation of other
principles, involving legislation and administrative action
(7)The courts should be easily accessible
- long delays, excessive costs, may turn law into a dead letter
(8)The direction of crime preventing agencies shouldnt be allowed to pervert
the law
Four types of justice:
- Formal justice: formal process and legislation
- Procedural justice: fair and impartial administration of justice, equality
before the law, due process of law, open justice (access to justice)
- Substantive justice => distributive/social justice; remedial/commutative
justice
- Civil disobedience
Important values preference for individual liberty:
- presumption of mens rea
- presumption of innocence
- non-retrospective operation of law
- strict interpretation of penal law
- no deprivation of private property without compensation
Governed according to law: a legal framework
Fair and impartial administration of justice monitoring compliance,
procedural fairness and remedies
From procedure to content: human rights and democratic form of
government
Separation of power:
System of Checks and balances as power corrupts, and absolute power
corrupts absolutely
- legislative sets down the rules of the game
- executive acts according to the rules
- judiciary ensures compliance with the rules and is the final arbiter of what
the law is: judicial review

Sources of Hong Kong Law

Constitution:
Concrete/codified (narrow) constitution:
- Document(s) comprises the written constitution: the most basic rule are
all together in one place.
- Basic Law is regarded as the concrete constitution of HK.
Abstract/un-codified (broad) constitution:
- Particular legislation, or decisions by the courts, contributes to the
complex of precepts which fall into the category of constitution.
- Some decisions of the NPC.
- The common law.
- Prerogative.
- Ordinances of the HK legislature.
- Practice or custom of the legislative branch.
HK has both concrete and abstract constitution.
Other characteristics include:
- It is a controlled constitution there are special procedures to change the
rules.(any amendments had to be made by the NPCSC)
- It is a regional constitution. -> therefore, in NPCSCs eyes, BL = regional
law and its power to interpret it is normal
- While in formal terms the legislative and executive branches of
government are distinct, there are links between them.
- Independence of judiciary the court enjoys high degree of autonomy
judges belong to a judicial service distinct from the civil service of
government.
Constitutional documents:
- PRC Constitution, Art 31: regard HK as a SAR
- Sino-British Joint Declaration 1984
- Basic Law, Art 8, 18
Constitutional development:
- The convention of Chuenpi Treaty of Nanking 1842, the Peking
Convention 1860 and the Peking Convention 1898 The Joint
Declaration 1984 Basic Law 1985-1990 Change of Sovereignty
1
July 1997
Principal sources of HK law:

(1)The Basic Law

(2)Applicable National Laws of the PRC
(3)Legislation
(4)Laws previously in force in HK as provided for in Art 8
(a) Ordinances and subordinate legislation
(b) The common law (decisional law) and equity
(c) Customary law
Other sources:
(1) The constitution of the PRC
(2) Interpretations made by NPCSC
(3) Opinions of the preparatory committee for the HKSAR established by the
NPC
1. The Basic Law
- It is the highest source of law apart from Chinese Constitution (Art. 18)
- It regulates other sources supreme law (Art. 11)
- HK legislations cannot amend the BL. The power of amendment is vested
in the NPC. If it is initiates by HKSAR, at least 2/3 of the legislative council
must support.
- NOTE: unequal distribution of power btw PRC & HK and PRC = dominant
personality -> for stability, harmony and social welfare
Article 2: HK enjoys high degree of autonomy The National Peoples
Congress authorizes the HKSAR to exercise a high degree of autonomy and
enjoy executive, legislative and independent judicial power, including that of
final adjudication, in accordance with the provision of this Law.
Article 8: Law previously in force in HK are maintained The laws
previously in force in Hong Kong, that is, the common law, rules of equity,
ordinances, subordinate legislation and customary law shall be maintained,
except for any that contravene this Law, and subject to any amendment by the
legislature of the HKSAR.
Article 11: Legislature cannot contravene BL no law enacted by the
legislature of the HKSAR shall contravene this Law
Article 18: National Law listed in Annex III applied to HK The laws in
force in HKSAR shall be this law, the laws previously in force in HK as provided
in Article 8 of this law, and the laws enacted by the legislature of the Region.

National laws shall not be applied in HKSAR except for those listed in Annex III
to this Law. The laws listed therein shall be applied locally by the way of
promulgation or legislation by the Region. The SCNPC may add to or
delete from list of laws in Annex III after consulting its Committee for the Basic
Law of HKSAR and the government of the Region. Laws listed in Annex III to
this Law shall be confined to those relating to defence and foreign affairs
as well as other matters outside the limits of the autonomy of the
Region as specified by this Law. In the event that the SCNPC decides to
declare a state of war or, buy reason of turmoil within the HKSAR which
endangers national unity or security and is beyond the control of the
government of the Region, decides the Region is in a state of emergency, the
Central Peoples government may issue an order applying the relevant national
laws in the Region.
Article 19: Defence affairs The courts of the HKSAR shall have no
jurisdiction over acts of state such as defence and foreign affairs
Section 4 of BL: The Judiciary (Articles 80-96)
Article 158: Interpretation and amendment of BL power of
interpretation vested in the NPCSC HKSAR courts may interpret
provisions of the BL which are within the limits of autonomy of the
HKSAR Courts may also interpret other provisions, but judicial referral
mandatory when the interpreting excepted provisions in a final
judgment that is not appealable NPCSC shall consult the Basic Law
Committee for interpretation.
Article 160: Supplementary Provision Upon the establishment of
HKSAR, the laws previously in force in HK shall be adopted as laws of
the Region except for those which the SCNPC declares to be in
contravention of this Law. If any laws are later discovered to be in
contravention of this Law, they shall be amended or cease to have force in
accordance with the procedure as prescribed by this Law. Documents,
certificates, contracts and rights and obligations valid under the laws
previously in force in HK shall continue to be valid and be recognized and
protected by the HKSAR, provided that they do not contravene this Law.
2. Applicable National Laws of PRC
- Article 18 of BL.

Confined to those related to defence and foreign affairs as well as

matters outside the autonomy of the Region.
- National laws may apply directly by an order of the Central Peoples
Government in case of emergency or war.
- Exhaustively set out in the Annex III of the BL.
- Laws apply on the establishment of the HKSAR listed in Annex III:
Resolution on the Capital, Calendar, National Anthem, National flag,
resolution on the National Day, order on the National Emblem,
declaration of the government on the Territorial Sea, Nationality Law.
- Changes to Annex III must be made by the NPCSC with prior consultation
with the SAR government and with the Basic Law Committee.
- National Laws are to be given effect by way of promulgation* or
legislation* by the Region. (Art 18)
(Promulgation* executive act a notice in the Gazette)
(Legislation* an ordinance)
National laws which are directly applied or through promulgation that
dont need re-enactment:
(i)
Laws which apply to military (Art 14), Garrison Act should be obeyed
by Chinese garrison.
(ii)
Apply by an order of the Central Peoples Government, not the NPCSC
When NPCSC has declared a state of war or decided that by reason
of turmoil within the HKSAR which endangers national unity or
security and is beyond the control of the Government of the Region
that the region is in a state of emergency. (No consultation to the
Basic Law Consultative Committee or the HKSAR government; no
limitation on the national laws apply, including ordinary laws like
death penalty.) Concept of national security: Under Chinas
National Security Law 1993, national security is limited to external
interference.
(iii) They are not restricted by Art 11 of BL, though they seem to be
caught by Art 39 which states that restrictions on the rights and
freedoms of HKSAR residents shall not contravene the ICCPR, the
ICESCR and international labour conventions.
National Laws applied through legislation (Art 18) restricted by Art 11
of BL which states that any laws enacted should not contravene the BL.
- Possible conflicts between national laws applied to HK through legislation
or promulgation and local laws no hierarchy equal standing
national laws will prevail if it concerned foreign affairs unless its
-

application did not satisfy the criterion laid down in Art 18.
Vague concepts like high degree of autonomy, matters within in the BL
are resolved by the NPCSC (Art 158).

3. Legislation
- Legislative process:
(a) Drafting instructions from policy bureau or DOJ
(b)White paper/other consultation document
(c) White Bill (L.S. No 5 of Gazette)
(d)Blue Bill & L.S. No.3
(e) 3 readings & CEs assent
(f) Hansard
- Power of legislation is limited by the Basic Law after 1997 Art
11, Art 39
- All legislatures must be reported to the NPCSC shall not affect the
enforcement of the laws (Art 17). But it can be invalidated by returning
the law to HKSAR by NPCSC.
- The courts may invalid a law if it is found contravenes the BL, some
provisions of the Chinese constitution, applicable national laws, those
listed in Art 39.
- Ordinances threaten the ultimate authority of the Chinese government
over HK would be invalid.
- Doctrine of separation of powers stated in the BL prevents legislation
from giving judicial power to the CE.
- Legislation can only enact ordinances for HK only.
- Any uncertainties arise from legislatures would be resolved by courts.
- Rules, regulations, by-laws Subsidiary, delegated, subordinate
legislation must stay strict to their parent ordinances.
4. Laws previously in force in HK (Art 8, 18, 160)
- Must not contravene BL.
- Adaptation of the laws to BL:
1. remove any implications of British sovereignty
2. remove anything that infringes Chinese sovereignty
3. insert Basic Law terminology (Governor chief Executive)
4. Recognize institutional changes (titles to judges, courts...)
- Decisions made on adaptation:
1. Repeal ordinances in their totality or only certain parts.

2. National laws prevail when there are conflicts between national laws
and HK laws on foreign affairs.
3. General principles on modifications of laws.
4. Rules for interpretation of laws.
5. Rules for substitution of names, terms and expressions.
14 ordinances were totally repealed; they include elections, Application
of English Law Ordinance, English Acts
30 June 1997? 1984 (Sino-British Joint Declaration)? Adoption of BL
(1990)?
Survival of Bill of Rights (6 June 1991)? (PWC political-based repeals)
Ma CA date of reception of previous law is 30 June 1997.
Hong Kong Reunification Ordinance passed by the Provisional Legislative
Council on 1 July 1997 endorsed the appointment of judges, provided
for the interpretation of laws previously in force, established courts, dealt
with the continuity of the laws previously in force, of legal proceedings, of
public services
Ordinances and subordinate legislation
All English laws, except those inapplicable to the local circumstances of
the Colony or of its inhabitants, existed on 5 April 1843 (a HK legislature
was established) were applied to Hong Kong in 1844. Post-1843 British
statues would not automatically apply to HK unless by prerogative
legislation or local ordinance.
Local legislature can amend or repeal the received law as it was just
used to provide a framework for the laws of HK.
1846: definitive statutory provision for the reception of English Law was
enacted.
1873: re-enactment of the provision. (S 5 of Supreme court ordinance)
1966: Application of English Law Ordinance split English laws into two
types: enactments, common law and equity.
Section 4 of the 1966 Application of English Law Ordinance provided for
the reception in HK of prerogative legislation (imperial legislation) and
the Acts of UK Parliament (imperial acts). But this has already been
omitted in the BL Art 8, except those previously incorporated to HK laws
by ordinance like Acts or Orders in Council.
Imperial enactments: imperial acts or prerogative instruments were
excluded from the BL Art 8 Chinas dislike of reminders of imperialism
as well as concern with its sovereignty but they have already formed
part of HK laws UK Parliament passed an act in 1985 to enable the

Queen to authorize the HK legislature by an order in Council to repeal or

amend any imperial legislation applying to HK as well as to make laws
having extra-territorial operation. Three orders were passed:
(1) Repeal or amend any imperial enactment so far as it is part of the
law of Hong Kong
(2) To make laws having extra-territorial operation if they related to civil
aviation, merchant shipping or admiralty jurisdiction.
Second Order in Council was promulgated in 1989
Third Order in Council was in 1993 4 topics were added: fugitive
offenders, intellectual property, protection of trading interests and outer
space.
A special unit for localization of laws was set up in the Legal Department
in 1986 enactments were localized soon after 1986 order, covering
admiralty jurisdiction, civil aviation, merchant shipping and coinage, but
progress was soon slow down from 1991 not all necessary legislations
were localized before transfer of sovereignty.
- Confusion and inconvenience were caused by the 1966 Application of
English Law Ordinance whether British statues not applicable to HK
could by their own terms modify the common law or equity that applied
to HK Gensburger v Gensburger pre-1843 statues which were not
listed in 1966 ordinance rule of the common law, which was repealed
or modified by a statue which was omitted, was resuscitated as thereby
part of the common law to be applied to HK? problem avoided by
Oceania Manufacturing Co. v Pang Kwong-hon common law rule which
had been abolished or modified by a statue did not revive on the repeal
of the statue.
(ii) Common law and equity:
- According to Art 8 of BL, any rule of common law alleged to be in force
in HK must:
1. not be in contravention of the BL
2. have been in force in HK on 30 June 1997 on that day been part of
the common law of England and not inapplicable to HK/if not part of
the English law on that day, have been part of the English law on 5
April 1843, not inapplicable to HK, and not abolished by legislation
during the colonial period.
3. have not been abrogated by the SAR legislature
- From 1966 (Application of English Law Ordinance), the cut-off date for
common law and equity was deleted. They were to be in force under 3

conditions:
1. so far as they were applicable to the circumstances of HK or its
inhabitants
2. subject to such modifications as these circumstances may
require
3. subject to any statutory amendment (whether imperial or local)
Definition of common law in April 1998 by Adaptation of Laws
(Interpretative Provisions) Ordinance was common law in force in Hong
Kong.
Will decisions of superior English courts bind HK in a continuous basis?
BL Art 84 authorizes the courts to refer to precedents of other
common law jurisdictions. Broaden the base of common law.
Hong Kong courts will be bound less rigidly after the transfer of
sovereignty:
1. Change of sovereignty may be inconsistent with continued
subservience to outside courts.
2. CFA is the court of ultimate appeal
3. English common law can only be applied subject to 3 provisions as
above.
Only pre-transfer decisions of the Privy Council and the House of Lords
are binding, but the CFA can depart from them if it considers them
wrong. And CFA can regard future decisions as persuasive only.
the 1966 Ordinance had led to confusion and absurdity Acts abolished
in the UK after 1843 was never in force in HK, but under 1966 formula,
however English common law after 1843 was applied to HK as the cutoff date for common law and equity was deleted.
Though there was a cut-off date for statue law, HK was indirectly
affected by English Acts after 1843 as they might impinged upon the
common law which was still applied to HK after 1843.
Though application of English Law Ordinance was declared inconsistent
with the BL by the NPCSC, common law by reference to the act still
applied.

(iii) Customary Law:

- Two proclamations by Captain Elliott in 1841 in application of Chinese
law.
- Under pre-1997 regime, Chinese law and custom was applied when
English law was not suitable and no local legislation covered that matter.

(by 1843 legislature)

- Art 8 and Art 40 of BL.
- Chinese law Chinese imperial codes.
- Custom Local customary law.
- BL only retained customary law (like land in N.T.) but not imperial
Chinese law.
- Features of customary law:
1. Customary law survived in HK family law and land in the
New Territories.
2. Very little family law according to traditional concepts now
exists due to the legislature reform in 1971 and as many of
the people who possess the rights under relevant customary
law have died.
3. Flexible and varied.
4. Inadequately administered by HK common law system as
precedents that judges relied on conflicted the flexibility and
localization of these laws.
5. They cannot survive if found contradictory to fundamental
principles of English laws.
6. They can modify received English law or affect interpretation
of local statue like wife which includes concubine in HK
- Specific provisions to apply Chinese law: New Territories Ordinance,
Adoption Ordinance, Marriage Reform Ordinanceetc.
- Their importance has been greatly diminished as legislative inroads
have been made recently, only those related to land in NT are
important.
Constitution of the PRC:
- BL was enacted by Art 31 of PRC constitution 1982 The state may
establish special administrative regions when necessary. The systems to
be instituted in special administrative regions shall be prescribed by law
enacted by the National Peoples Congress in the light of the specific
conditions.
Interpretations made by the NPCSC:
- Under Art 67(4) of the PRC constitution, the NPCSC exercises the
function and power to interpret laws of the PRC. The Basic Law is a
national law of the PRC.
- Art 158(1) of BL power of interpretation belongs to the NPCSC.
- Art 158(2) of BL NPCSC can authorize SAR courts to interpret on their

own.
Art 158(3) of BL CFA can seek interpretation from the NPCSC of the
provisions which concern the relationship between the Central
Authorities and the SAR or those within the responsibility of the Central
Authorities.
Right of Abode of mainland born children incident in 1999 NPCSC reinterpret the relevant provisions NPCSC has legal and constitutional
power under BL.

Opinions of the preparatory committee for the HKSAR established by

the NPC:
- Preparatory committees opinions showed the true legislative intent of
the relevant provision.
Controversies regarding issue of interpretation of the BL:
- power of interpretation vested in the NPCSC
- HK courts may interpret those provisions w/in the autonomy of the
HKSAR
contradictory -> wt= w/in provisions in the autonomy of SAR? Who has the
interpretation power?
- CFA shall, before rendering judgment, seek an interpretaiton from the
NPCSC on provisions concerning affairs which are the responsibility of
CPG or concerning the relationship between the Central Authorities and
SAR
- Classification test: 1. outside HK autonomy; 2. about PRC government;
3. relationship of SAR and PRC
- Necessity test: judgement X render without interpretation (Right of
Abode Case -> important?)
- The scope of NPCSC to interpret = great -> legislative interpretation
- Interpretation power of NPCSC could be exercised anytime
Case Study: Right of Abode Case
- Art 24: HKPR include children born outside of HK of HKPR who are Chinese
nationals
- 10/7/97: enacted that certificate of entitlement and one-way permit needed
and was made effective on 1/7 -> retrospective! Against common law; also =
challenge to Immigration Ordinance
- CFA ruled that this is unconstitutional and all children born by HKPR outside
HK has right of abode in HK and gave judgement claiming that CFA had full

authority to review the legislative acts of NPCSC for the purpose of determining
whether they are inconsistent with BL
- CFA regarded it a case within its domain = domestic provision
- NPCSC = immigration policy
- attacked by NPCSC as putting themselves higher than the NPCSC and turning
HK into an independent political entity
- HKSAR appealed to NPCSC (CFA = court of final adjudication?) and bypassing
the judiciary of HK => respect to rule of law in HK? Or use law as a means to
justify its wanted ends? Referring to a political body rather than a
legislative/judicial body -> separation of powers? Domestic provision only ->
surrender of HKs judicial independence in regard to domestic provision?
- NPCSC -> power to interpret whole of BL
- CFA: clarification/ rectification => succumb to legislative intervention?
Executive immigration policy and the legislatures decree -> trumped judicial
decisions?
- Executive decisions > judiciary? Separation of power in HK collapse?
Other cases of interpretation:
1st: non-adoption of previous law in force in HK
2nd: right of abode case
3rd: term of office of CE
Other controversial cases:
1. National Flag Case
- 2 charged with violation of S7 of National Flag and National Emblem
Ordinance -> CA found for the charged, found that it = freedom of expression
- CFA -> allow appeal of govt as it = constitution
=> in the face of battering from the public regarding the issue of patriotism,
CFA yield to public opinion? Freedom of expression X > public order? ICCPR in
HK?
2. Non-prosecution of Sally Aw
- charged with conspiracy to artificially inflate the circulation of HK Standard
- not prosecuted -> Ms Elsie Leung said evidence X against Ms Aw (evidence
consideration)
- public interest consideration: Sing Tao = big company and during eco
downturn, its possible collapse = bad message to the international community
and potential social effects would be great -> unemployment, collapse of

media
=> issue of concern: rich people = X prosecuted when evidence may prove
against them? Equality before the law, one of the major pillars in the rule of law
in HK? Close relationship with CE = cause of non-prosecution? Esp when other
3 defendants = convicted
=> inconsistency in bringing prosecution: should be brought to court but did
not, discretion of Secretary for Justice used at a wrong area?
3. Public Order Ordinance
=> originally = part of law reform to be in line with standard of the ICCPR;
banned by NPCSC to be part of BL -> X restoration of these laws to preamendment version, but a chance to enact new laws
- amendments = undermine the ability of HKSAR govt to maintain public
order?
controversies:
1. government has the power to prohibit a public meeting or procession or the
operation of a society on the additional ground of national safety
2. political bodies in HK may not have connection with foreign or Taiwan
political bodies a political tool to curb any attempt to affect party leadership
in the mainland?
3. Procedures to demonstration:
- 7 days advance notice -> cert of no objection of police before the protest
(protestors became @ discretion of police in protest), music to drown out the
noise of protestors -> a tool to silence opposition?
4. Interface btw the two systems: Big Spender/ Telford Garden Cases
- rendition agreement between 2 separate legal systems
=> crimes in China and HK -> which system has the jurisdiction to try Big
Spender?
At last, got tried in China and capital punishment
- fear in HK => when HK people got caught in China and prosecuted by PRC
on grounds of political views? HK govt X offer any protection
- OR = judgement against a PRC national @ HK, any power to enforce in PRC?
5. Falun Gong
- labeled as a cult in mainland -> CE in HK followed the saying
- X legal basis to outlaw Falun Gong in HK as activities = lawful
=> freedom of association and religion in HK? place under close watch of

many religious groups?/ use of executive means to wrench out voices of Falun
Gong? Political censorship in place?
6. Freedom of Expression
- RTHK => wholly government funded and enjoys complete editorial
independence -> political pressure because of airing programmes regarding
Taiwan issues
- different censorships implicitly imposed when criticism is made towards PRC
- increased in defamation suit against media
- proposal of a set up of press council: self- censorship? Open to manipulation
of the government
=> are voices against the government stifled? Are media less protected now?
7. Legislation of Article 23
- give arbitrary power to police to seize materials
- X relationship with foreign societies, deemed as illegal when do so
- journalists are concerned about the subeversion and session clauses ->
reporting on sensitive issues = advocating the splitting up of China
=> use as a tool to curb societies growth? What about politically sensitive
organizations? Curb voices from opposition?
=> individual liberties infringed -> power of law enforcement became greater
=> may discriminate people against race/ community

Access to Justice
A right of access to the legal system:
Legal
-

aid basic right

Equality before the law (BL 24)
Rights of access to court as an inherent right to fair hearing
Right to confidential advice and choice of lawyer BL 35
Integral part of administration of justice
Equal access to justice
Restoring equality of arms and assisting the under-privileged groups
Contributing to development of law/public interest litigation
High quality of services expected by community
Obstacles to Access to Justice:
1. Lack of legal knowledge and ignorance of legal rights.
2. Lack of legal advice.
3. Complexity of procedure issuing writs, preparing statements of claim,
seeking discoveryetc.
- more number of cases and more people are aware of the procedural justice
4. Costs.
- advocates are paid in time rate -> incentive is lower to speed up
proceedings
5. Lack of legal representation.
Why legal aid?
1. Equality before the law. (BOR-Art 10, BL Art 24, 25)
2. Right to fair hearing,
3. Right to confidential legal advice and choice of lawyer (BL art 35, HKBORO).
Eg. Access of justice for unrepresented litigants in serious cases
HKSAR and Wu Wai Fung & Another [2003] 3 HKLRD
- X absolute right of every person facing criminal proceedings to have
legal representation at public expense where a D wished to be
represented, the decision to whether legal aid would be granted was
generally, aside from other considerations, dependent on the Ds
inability to afford services of legal representatives
- Judges have discretionary power to override the decision of the Director
of DLA when the consideration factors are different eg. The procedural
difficulties affecting the fairness of the proceedings -> utmost
gravity and truly compelling circumstances were required to

justify denying legal representation and the financial

considerations had been given undue weight
- Overall complexity should be considered from the perspective of a
layman -> when case = too complicated, laymen X professional
knowledge to bring defences, eg. Stabilizing influence of a counsel->
denied fair trial
- Unrepresented laymen at court -> false economy due to substantial
lengthening of the proceedings and by putting the prosecution to strict
proof on every issue at trial
Considerations:
- Any conflict of interests when legal aid is funded by public revenue?
- Desire to protect the needy v saving of scarce public resources.
- Quality of services high quality is expected from the public.
- Independence.
- Controlling litigation costs transparency of legal charges, contingency
fee (only charge when successful), class action (one single case would
be act as a representative to benefit the whole class of people in
society)

Cost problem dealt by Legal Aid in Hong Kong

Legal Aid Department
Duties:
- providing legal representation at civil and criminal trial at the District
Court or above, including Lands Tribunal, some coroners inquest (legal
assistance should be provided to persons who are likely to face
a reasonable chance of criminal prosecution that would lead to
a jail sentence or loss of livelihood as a result of giving
evidence at a coroners inquest. Such legal assistance is only
confined to advice only, but not legal representation.) and Mental
Health Review Tribunal.
- The scheme does not cover magistracies except for committal
proceedings.
- No person defending criminal charges or taking or defending civil
proceedings with reasonable grounds for should be denied access to
justice by lack of means.
Eligibility:
- No restriction on grounds of residency.
Means test:
- Financial eligibility.

Financial resources of the applicants spouse are included in those of the

applicant they are considered as a single economic unit.
Should there be a reform?
IF NO:
- they should support each other
- prevent re-allocation of resources between the two
- treat finance together -> if $ not enough -> serves as a resistance and X
bring unnecessary litigation
IF YES:
- women has become more independent in modern society -> resources
may be separate between the couple
Points to think about:
- if there is a reform -> may attract rich couple to apply for legal aid
- can there be a merger of the two? eg. Separate $ when resistance
from husband/partner = proved, domestic violence
Financial resources of the parents of an applicant who is an infant are not
counted as those of the infant infants are considered as separate
entities.
Should there be a reform?
- childrens right should be protected more vigilantly in modern society ->
rights of children to bring legal action should not be jeopardized
- if parents have to subsidize for the litigation and the damages is not for
parents ->the incentive will be really low
- therefore = should ensure access to justice of children
Financial resources of employees when employers appeal against decisions
@ Labour Tribunal -> present situation: employees have to pass means test
before getting legal aid
Should employees be able to get legal aid by waiving the means test?
- employees are usually @ harassment of the employer
- employer with more $, can control the litigation process -> costs
incurred = very high -> employees may not have enough financial
resources to stand against the appeals
-

Legal aid scheme

On the basis of ones financial capacity Sum of his annual
disposable income (gross income minus personal allowances) and

his disposable capital sum of his credit balance, the market value of
his non-money resources and the value of business or share in a
company)
Eligibility limits - $169700.
- Supplementary legal aid scheme
For sandwiched class
Self-financing
Eligibility limits - $471600
Confine to personal injuries, death, medical, dental or legal
professional negligence and claims under Employees Compensation
Ordinance.
Contribution non-refundable application fee; 12% if successful, 6%
if settlement before appointment of counsel)
- Director of Legal Aid has the discretion to waive financial limit on BOR
cases.
Merits test:
- Justification of legal action.
- Reasonable prospect of success.
- Not applicable to criminal trial.
Legal Aid Certificate:
- Director of Legal Aid should be empowered not to discharge/discharge a
legal aid certificate in the interest of justice.
- Issued by the court.
- The DLA is empowered to grant legal aid to a person with financial
capacity greater than the eligibility limit for the standard legal aid
scheme if in his case a breach of the HKBORO or an inconsistency with
the International Covenant on Civil and Political Rights as applied to HK
is an issue.
Contribution:
Ensure persons with greater financial capability will not rely solely on
the publicly-funded legal assistance.
Pay registration fee and contribute back a portion of any damages
awarded.
A sliding scale depending on the financial resources, subject to a cap,
free if financial resources below $20000.
Those whose financial capacity does not exceed $86000 are not
required to contribute.
Where property is recovered or preserved. Director is entitled to recoup

from such property the legal costs incurred on the applicants behalf
which could not be recovered from the opposite party: Directors first
charge.
Criminal Legal Aid:
- Criminal trials in magistrates courts are not covered.
- Same means test as in civil legal aid.
- No merit test for criminal trial due to presumption of innocent.
- Merits test for appeal.
Legal aid funding:
- Funded by the government a government department conflict of
interest.
- No ceiling on the spending on each publicly-funded legal aid case due to
interest of justice and interest of the legally-aided person no ceiling
on total legal aid spending since the number of legal aid applications,
number of approved legal aid applications cannot be determined in
advance.
- Can it be done in a more cost-effective manner?
- Public money properly spent?
Appeal against refusal to grant legal aid:
- Appeal to Register.
- No appeal where legal aid is refused on means test.
- Court may order legal aid in the interest of justice, or grant exemption
from means test and contribution in murder, treason or piracy with
violence (all of which used to carry capital punishment).
- Legal representation may be required in the appeal. (but who provides
it?)
Legal
-

Aid Services Council

A statutory body set up in September 1996 under the LASC Ordinance.
Oversee the administration of legal aid services provided by LAD.
Advise the Chief Executive on legal aid policy.
Chaired by a non-official and comprises 8 non-official members and one
ex-officio member.
Publicly funded.
Monitoring LAD:
Formulate policies governing the provision of services by LAD and
give advice on the policy direction on LAD.
Periodically review the work of LAD and make arrangements as are

Duty
-

expedient and proper to ensure the efficient and economical

discharge of its functions and provision of legal aid services.
Review LADs services and its development plans.
Consider and advise on LADs estimates of expenditure.
It is an advisory body on publicly funded legal aid services:
Eligibility criteria, scope of services, mode of service delivery, future
plans for improvements, funding requirements and future
development of legal aid policy.
Feasibility and desirability of the establishment of an independent
legal aid authority.
Working party on the institution of legal aid recently established.
Lawyer Service
Run jointly by the Hong Kong Bar Association and the Law Society of
Hong Kong.
Funded by the government.
Consists of 8 nominated members from the legal profession and 3
appointed lay persons.
Provides legal representation in the magistracies (trial, sentence and
mitigation), coroners court, juvenile court, one-viewer ID parade,
hawkers appeal and extradition proceedings.
Possible conflict of interests as DLS work id a source of business
opportunities for the legal profession.
Means test for trial gross annual income not exceeding $127330 and
a handling fee $300, but discretion to grant legal representation when
means test is not satisfied but in the interest of justice to do so.
Merit test whether applicant in jeopardy of losing liberty; whether a
substantial question of law is involved.
Free Legal Advice Scheme
Offers free legal advice at selected District Offices.
All members enrolled in the Duty Lawyer Scheme shall take part in
this scheme.
Appointment through District Office and referral agencies.
Operates a telephone hot-line for legal enquiries.
Pre-recorded tapes explaining briefly the law in a particular area of
law.
Existing tapes cover over 78 topics in 8 areas.
In Cantonese, Putonghua and English.

Other Legal Advisory Services:

- Bar free legal services scheme.
- Consumer Council legal action fund.
- Equal Opportunities Commission.
- Ad hoc legal advice scheme offered by offices of Legco and DB
members. (Legco members/district board members who are lawyers
giving advice)
- Amicus curiae (Friends of the court members of the bar not acting
for any party giving assistance to the court only)
- Proposed Judicial Center
- Pilot scheme to on Legal Aid for Mediation in Matrimonial Cases
- Alternative Dispute Resolution (commercial cases)
Contemporary Issues:
- Independence of Legal Aid Service
Public perception that as LAD is a government department, it would
not be independent of the government.
3 options: maintaining status quo; an independent legal aid
authority; independent monitoring body.
Government favored the last one as it is less costly and to avoid
disruption to present services.
Setting up Legal Aid Services Council.
- Review on eligibility requirements
Eligibility requirements should be responsive to changing economy.
Only the needy are entitled to assistance by public fund.
No imposition of ceiling on expenditure on legally aided cases a
strength of HK system.
Duty of assigned lawyers to act responsibly and in good faith vis a
vis legal aid fund.
Controversial
areas:
minor,
spouses,
visitors,
illegal
immigrants.
- Expansion of Supplemental Legal Aid Scheme
Too conservative?
Resource?
What are the priority area?
Defamation cases?
Discretionary approach?
Review on contingency fees system
- What are conditional fees?

=> a conditional or contingency fee agreement can be described as an

agreement between a legal practitioner and his or her client to the effect
that the legal practitioner will charge no fees if the clients court case is
conducted unsuccessfully. This type of arrangement is usually allowed only
in civil litigation cases, although the scope of application differs amongst
jurisdictions
Currently prohibited by professional rules.
Advantages: (1) enable those who do not have the means to take
out or defend legal proceedings -> broadening access to justice and
to legal services (advocacy). (2) less unrepresented litigants in court
-> less time and costs in court proceedings; (3) integrity of the
judicial process, guaranteeing fairness and sufficient standards of
lawyers competence and conduct; (4) judicial economy, ensuring
the efficiency of the judicial system; (5) competition -> better ways
of providing services more choices to clients
Disadvantages: community becomes highly litigious (nuisance
lawsuits); conflict of interest between lawyers and clients.; may
breach cab-rank rule as they have to assess the prospect of their
clients success
Proposed items:
1. no win, no fee higher incentive to be serious,
may bring nuisance lawsuits (conditional)
2. no win, less fee higher incentive
3. win, uplift fee higher incentive, however may
bring conflict of interest (eg. When client want
appeal and bar want $$?) ->may breach cab-rank
rule, for solicitor -> interest for client = priority, so
$ or client? (conditional)
4. win, % of damages may tempt lawyers to bend
the rules and enhance his clients changes of
success by desperate attempts (contingency)
13 proposals (in long)
1. Prohibitions against the use of conditional fees in certain types of
litigation by legal practitioners should be lifted, so that legal practitioners
may choose to charge conditional fees in appropriate cases
2. Applied to the following types of cases:
- personal injury
- family cases, except welfare of children is involved

- commercial cases in which an award of damages is the primary

remedy sought
- product liability cases
- insolvency cases
- employees compensation cases
- professional negligence cases
X applicable to criminal, family cases with welfare of children,
defamation cases and cases in which an award of damages is not the
primary remedy sought
3. Any success fee and after-the-event insurance premium agreed by the
claimant with his lawyers and insurers respectively should not be
recoverable from the defendant.
4. The method/criteria for fixing success fees should, as far as practicable,
be fixed by legislation and determined by involving interested bodies,
including insurers, legal practitioners and etc to see if common ground can
be reached on reasonable methods and criteria for setting the level of
success fees. The level of success fees should also be adjusted
according to the stage of litigation and staged success fees should
be adopted.
5. TO discourage frivolous claims, there should be a cap on the success
fee which is expressed as a percentage of normal costs.
6. A claimant utilizing conditional fees should be required by law to
notify the defendant of this fact and that the court should have
discretionary power to require security for costs in cases.
7. The relevant legislation and subsidiary legislation should be simple and
clear to avoid frivolous technical challenges. Client-care provisions
should be set out in professional codes of conduct so that trivial
breaches can be dealt with by the professional bodies in stead of
the courts.
8. Efforts should be made to ensure that professional bodies adopt
appropriate rules to safeguard clients interest and have effective
disciplinary measure to deal with and deter breaches.
9. Regulations should be drawn up to enable engaged in the provision or
purchase of legal services en masse to make use of collective conditional
fee arrangement.
10. Only the 4 fee arrangement should be allowed.
11. As the feasibility of conditional fee regime depends upon whether there
is insurance available to cover the opponents legal costs if the claim is

unsuccessful, there is need to conduct an in-depth study of the commercial

viability of ATE insurance.
12. Given the success of SLAS in widening access to justice by using eventtriggered fees on a self-financing basis, considerations should be given
to expanding SLAS by increasing the financial eligibility and the
scope.
13. An independent body should be set up to screen applications for the
use of event-triggered fees, to brief out cases to lawyers, to finance the
litigation and to pay the opponents legal costs should the litigation prove
unsuccessful. Applicants would not be mean-tested but should satisfy the
merits test. The proposed body would take a share of the
compensation recovered and the lawyers would be paid on a
conditional fee basis. Litigants with a good case would then be
able to bring their cases to court without financial exposure.
Unrepresented litigants
A most difficult problem.
Mediation and alternative dispute resolution.
Judicial Resources Center.
- Simplification of trial procedure

The doctrine of Stare Decisis and Case

Law Techniques
Ratio, dictum or orbiter dictum:
Ratio decidendi a proposition of law which forms the basis of the courts
decision in the context of material facts binding court in a higher
position in the hierarchy binds the lower one.
The ratio of each case must take into account the facts of that particular
case and then generalize from those facts as far as the statement of the
court and the circumstances indicate is desirable. The greater the number
of facts in the ration, the narrower its scope; conversely, the fewer, or the
higher the level of abstraction, the broader the reach of the ratio the
more facts situation it covers.
Text book definition: from Halsburys Law of England, : The enunciation of
the reason or principle upon which a question before a court has been
decided the general reasons given for the decision or the general
grounds upon which it is based, detached or abstracted from the specific
peculiarities of the particular case which gives rise to the decision. What
constitutes binding precedent is the ratio decidendi.
Orbiter dictum Any statement of law, carefully considered, was not the
basis of the decision is orbiter though not binding, of very great
persuasive weight.
Text book definition: Statements which are not necessary to the decision,
which go beyond the occasion and lay down a rule that is unnecessary for
the purpose in hand.
3 elements of being bound:
The precedent must have been pronounced by a court that stands in
the hierarchy in a position to bind the present court. stare decisis
The proposition of law must have formed the ratio of that decision.
It must be relevant to the facts of the present case.
Declaratory Theory:
Common law is not made and changed by judges but discovered and
declared by them.
Judges do not pronounce new law but to maintain and expound the old one.
A prior decision does not constitute the law, but is only a judicial
declaration as to what the law is.

When an earlier decision is overruled the law is not changed: its true nature
is disclosed, having existed in that form all along.
The law is always there. Common law is the same since time immemorial.
Its a process of research and identification rather than invention and
creation.
Precedents are evidence of the common law.
Image of judges sometimes conveyed by the declaratory theory as almost
machine-like, formalistic automatons, operating entirely impartially in
finding and applying law.
Realistic Theory:
The common law is judge-made law.
The common law, just as the rules of equity, has been invented, altered,
improved and refined from time to time.
Law was the product of judicial will. It was not discovered but created.
Developing and creating new law in order to bring law to be in line with
social changes
The retrospective effect of a change made by judicial decision is bound to
operate to some extent
Common law is a living system of law Lord Goff *he must act within
the confines of the doctrine of precedent, but that the change so
made must be seen as a development, usually a very modest
development, of existing principle so can take its place as a
congruent part of the common law as a whole

Stare decisis:
Extracting ratio from a precedent case which material facts are similar and
applying the ratio to a new case.
Not all previous cases are bind or oblige. It depends on the hierarchy of
courts. A lower court is bound to follow the decision of a higher court.
Three conditions of Stare decisis:
- an earlier case
- factual similarity
- a particular relationship between the decision-making authorities
Vertical Stare decisis:
Court of Final Appeal Its decision is binding on all lower courts.
Court of Appeal Not bound by decisions of Full Court. The Court of Appeal
is obliged to follow every ratio in every prior Court of Final Appeal case. Its
decisions are binding on all lower courts and tribunals.

Court of First Instance Bound by the decisions of the Full Court, the Court
of Appeal and the Court of Final Appeal. Its decisions are binding on all
lower courts and tribunals.
District Court Bound by the decisions of higher courts. Its decisions
generally not binding on lowers courts, but their decisions will be followed
in the absence of contrary authorities.
Magistrates, coroners and tribunal officers ought to obey the District Court
and the High Court.
Horizontal Stare decisis:
Courts being bound by their own decisions.
Court of Final Appeal
(i)
There is no direct authority on whether CFA is binding on itself,
though it is believed that the previous practice governing the Judicial
Committee of the Privy Council shall apply, which is that it is
generally free to overrule a manifestly incorrect decision.
(ii)
In the interest of certainty, CFA will only overrule its previous
decisions in exceptional circumstances.
(iii)
A decision of CFA may not be binding, but is still of highly persuasive
value (1) when a point was assumed sub silentio (under or in silence,
without notice being taken or without making a particular point of
the matter in question) upon which the Court has heard no argument
or (2) when there are two conflicting decisions of the Court.
Court of Appeal - Its decisions are usually binding except (Young v Bristol
Aeroplane):
(i)
its decision cannot stand with a pre-1997 decision of the House of
Lords or Privy Council or a decision of the CFA;
(ii)
there are conflicts with another prior decision of the Court of Appeal;
(iii)
when it is satisfied that the decision was given per incuriam taking
in ignorance of a binding authority, which followed, would
necessarily have led to a different result.
Court of First Instance:
- Not binding on itself.
- Later decision of two conflicting decisions of courts of co-ordinate
jurisdiction usually to be preferred.

The Privy Council (a judicial institution):

Under Article 8 of the Basic Law, law previously enforced in Hong Kong,
namely common law, shall be maintained. According, the decisions of the

Board before 1 July 1997 continue to be binding on Hong Kong courts.

While decisions of the Board after 1 July 1997 are no longer binding in Hong
Kong, they will still be of highly persuasive value. In accordance with the
declaratory theory, decisions of the Privy Council and the House of Lords
after the cut-off date would continue to represent the common law as at 30
June 1997 and thus Hong Kong courts would be bound by those decisions.
House of Lords:
Its decisions could not therefore have been binding in the Hong Kong courts
since:
(i)
It is the upper house of the United Kingdom parliament and is not
part of the hierarchy of our courts.
(ii)
Common law develops to meet changing circumstances and patterns
of the society in which it is applied.
However,
(i)
The judges who sat in the House of Lords for the most part sat in the
Judicial Committee of the Privy Council and were likely to decide the
same way.
(ii)
Decisions of the House of Lords are so highly persuasive that very
strong justifications are required for any departure.
Other decisions of the English Courts or other Commonwealth Jurisdictions
Generally not binding, though they are of persuasive value.
Departure from stare decisis:
Later court is convinced of error in earlier decision.
Re-interpretation of ratio.
Distinguishing the material facts.
Overruling.
Per incuriam which holds that a decision taken in ignorance of a binding
authority which, if followed, would necessarily have led to a different result.
Change of social or economical circumstances.
Advantages of precedent:
It makes law technical and conservative.
Respect for the opinions of ones ancestors as they are wise and just.
We ought to learn from practical experience. Judicial law is practical until
the doctrine of precedent comes into force.
Flexibility constraints imposed by stare decisis are always weak.

Convenience Stare decisis promises judicial efficiency and a limit to

litigation.
The scientific development of law the creation and maintenance of
doctrine, the avoidance of unconnected instances, the ability to predict
how a case will be decided.
The avoidance of error into which individual judges, unguided by
precedent, might fall, or at least the reduction of dissimilarity amongst
decision-makers.
The prevention of partiality or prejudice.
Like cases can be treated alike Fairness, equity and consistency.
Reliance.
Certainty.

Weight of precedent:
Status of the court the higher the court in the hierarchy, the greater its
authority.
Eminence of the judges.
Dissenting judgments the existence of any dissenting opinions would
affect the weight of a decision, especially if the dissenting judge is of
particular eminence.
Age of the precedent:
Old reflects well-settled law / no longer apt for modern conditions
Reliability of case report.
Queried or overruled by subsequent decision whether it has been
overruled, distinguished or approved in later cases.
General reputation of the precedent enjoys discussion by scholars and
law-reform bodies.
Whether decision depending on social or economical circumstances.
Problems with law-making by judges and the doctrine of precedent:
Over-emphasis the importance of individual decisions.
It creates law which may upset expectations with no advance notice to
those likely to be affected.
The system depends on the accidents of litigation. A bad decision may
stand for many years.
Backward-looking and conservative.
Slow respond to changing needs.

Retrospective / Retroactive operation:

Laws which, expressly or by implication, operate so as to affect acts done
prior to their having been passed.
A progeny (result) of declaratory theory.
Once there is a judgment from a higher court overruling an earlier decision
and has stated the changed law, the law is so stated applies not only to
that case but also to all cases subsequently coming before that courts for
decision, even though the events in question in such cases occurred before
the Court of Appeal decision was overruled. (events that have occurred
some time + cases in the fuure)
The law was later retrospectively changed could not expunge the past or
alter the facts of history.
How does a judge decide a case?
Look at applicable statues.
Precedents drawn from reports of previous judicial decisions.
Academic writings in interpreting statues.
Effect of reported cases.
Decisions of judges in other jurisdictions.
The judge should confine to the doctrine of precedent, but any change to
be made must be seen as a development, usually a very modest one, of
existing principle and so can take its place as a congruent part of the
common law as a whole.
Diversity of Common Law
Case: Cheung Ng Sheong Steven v Eastweek Publisher Ltd & Anor
a matter of the divergent development of the common law, in appropriate
that the common law in that field should have developed on the same lines as
in Hong Kong development of common law depends on different social,
economic and judicial development of different places within the common law
world also stated in the Basic Law of Hong Kong

The Legal Profession

A separate profession:
Solicitors:
-

Firm, trainee solicitors, assistance solicitors, partners, consultants

Under the control of Law Society

Barristers:
-

Chambers, junior counsel, senior counsel/Queens counsel

Referral profession

Appear in courts, give opinion, draft documents

Qualifications and training (Hong Kong):

5.

PCLL

6.

Articled clerkship/trainee solicitor and pupilage

7.

Admission and call to Bar

8.

Continuing legal education

Qualifications and training (Overseas):

1. Overseas Lawyers Qualifications Examination
2. Admission on a case by case basis
3. Difficult for overseas barristers to work here as
there is no exam he can sit to localize his
qualifications
Profession:
-

special training/education/qualification obtained by a recognized course of

study

distinct rules and conditions: practice requiring the application of that body of
knowledge

putting clients interest first and even above ones own interest (but duty to
court prevails duty to client whenever theres a conflict

code of ethics and disciplinary proceedings for enforcement

Professional Ethics and Discipline:

(a) Lay client and solicitors
1.

fiduciary relationship; conflict of interest act with

absolute openness and fairness towards his client; act in
best interests of his client; must not put himself in a
position where his own interests conflict with his duty to

his client
2.

direct contact with client

3.

liability in negligence

4.

disciplinary action

(b) Relationship between barristers and solicitor

1. cannot enter into a contract for their services
2. no conditional fees
3. by referral: brief to counsel
4. resolution of dispute by referring to the respective professional
(c) Relationship between barrister and client
1. Overriding duty to court
2. duty to client uphold the interests of his client without regard to his own
interests or to any consequences to himself or to any other person; same
privilege as his client of asserting and defending the clients rights by the
statement of every fact and use of every argument that is permitted by
the principles and practice of the law
3. cab-rank rule: code of conduct 2.1 A practicing barrister is bound to
accept any brief to appear before a court in the field in which he professes
to practice at his usual fee having regard to the type, nature, length and
difficulty of the case. Special circumstances such as a conflict of interest or
the possession of relevant and confidential information may justify his
refusal to accept a particular brief
4. disciplinary action
5. immunity from negligence liability abolished
6. direct access by professional clients
(d) Professional privilege
1. Immune from an action for negligence at the suit of his client in respect of his
conduct and management of case
Reasons: vulnerability of barristers: overriding duty to court may conflict with duty
to client; cab-rank rule -> must accept cases despite how slight the possibility to
win -> may = prone to litigation; administration of justice: re-litigation and overlitigation, frivolous claims to the court
2. duty to preserve the confidentiality of their clients affairs = enable clients to
make full disclosure to his legal adviser without fear that the information disclosed
will be disclosed against his will
3. prevent floodgate of litigation
4. encourage the bar to take test cases

Some current controversies:

Merging the two professions? (Monopolies, restrictive practices and multi-disciplinary
practices)
- practice in USA, Singapore
Yes:

Efficient, cheaper

Unnecessary costs at the expenses of clients and legal aid

Solicitors have a right to audience in lower court and district courts already,
high courts should be open to solicitors (Fair and justice) (Extension of the
rights of audience)

Modern trend in other Commonwealth countries

Clients have the right to choose solicitors to represent them

Trust relationship between clients and solicitors (more conducive to

confidence between them)

Public interest 1 solicitor + 1 barrister redundant, waste of resources

Advocacy is a specialist skill which requires concentration and constant

No:
practice, advocacy in lower courts is quite different from those is higher
courts (ensures the availability of advocates, promotes acquisition of
specialist knowledge and skills)

Independent, objective and impartial legal service because of detachment,

personal service foster, trust and confidence (encourages a more objective
view of the lay clients case)

Advances ethical integrity

Pool of specialist not tied to any particular law firm can share the
expenses

No demonstrable costs benefits (does not necessarily lead to less efficiency

or greater expenses)

Law Society refuses to accept the Cab-rank rule

Affected only junior bar whose work could be done by solicitors anyway, but
resulting in a dilution of experience and quality: a strong local and
independent bar is in the public interest.

Reforms made recently:

-

Solicitors can be appointed as judges

Barristers can consult with clients without the mediation of a solicitor if no

prejudice to the interest of the client or of justice is caused thereby

Two-counsel rule (a Senior counsel to be accompanied by a junior colleague)

was abolished

The Law Society has relaxed restrictions on advertising by solicitors

Advertisements
Solicitors:
-

only promote their practice in a decent, legal, honest and truthful way

promotions should not be likely to mislead or deceive, whether by inclusion or

omission

should not make any claim or imply that the solicitor is, or that his practice is or
includes an expert in any field of practice generally. It is permissible, however,
to refer to his knowledge, qualifications, experience or areas of practice
provided that such a claim could be justified

should not be in any manner which may reasonably be regarded as having the
effect of bringing the solicitors profession into disrepute

should not be inappropriate having regard to the best interests of the public

Barristers:
-

may not do, or cause to be done on his behalf, anything for the purpose of
touting, or with the primary motive of personal ad.

May not write for publication, broadcast by radio or television on any matters on
which he has been or is currently engaged as Counsel, unless he can do so
without disclosing confidential information and without giving publicity to his
own part in the matter

Why not relax the rules?

-

advertisement = commercialized

lawyers should be professional

may mislead the public

Why relax the rules?

-

get more information about lawyers ie price and services they provide

lawyers may get more customers

Right of audience:
-

if solicitors have right of audience in higher court -> may = lower independence
to the court as barristers have a higher priority in duty to the court but
solicitors priority is to the client

higher charges and more delays

cab-rank rule -> not abide by the solicitors -> undermine access to justice -> $
may = conflict of interest