INTRODUCTION TO LEGAL SYSTEM

LECTURE 8
THE HONG KONG COURT SYSTEM
OVERVIEW

 What are Courts

 The Structure of the Hong Kong Courts
 Pre-1997
 After 1997
 Appeal System
 Tribunals
 Coroner’s court
 The Small Claims Tribunal
 The Labour Tribunal
 Lands Tribunal
 The Obscene Articles Tribunal
WHAT ARE COURTS
 A place where justice is administered.
 Also refer to the judge or judges who make up the court.

 NO actual definition in legislation, it is a question of interpretation whether a particular body is a court.

 Section 3 of Interpretation and General Clauses Ordinance (Cap. 1) - ”court (法院、法庭) means any court of the Hong
Kong Special Administrative Region of competent jurisdiction”

Article 35 of the Basic Law provides:

 “Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for
timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.

 Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the
executive authorities and their personnel.”
WHAT ARE COURTS
 Civil vs Criminal Court
 Some Courts exercise both Criminal and Civil function

 Superior Court vs inferior court

 In terms of jurisdiction
 In Civil cases  financial limit claimed
 In Criminal cases  seriousness of the case and the maximum penalty imposed

Jurisdiction
 synonymous with power
 a court has jurisdiction to do something, i.e. imposing sentence when it has the requisite power or authority
 A judge exceeds his jurisdiction if the Court:-
 decide something he is not empowered to decide or
 act improperly in the course of the decision-making process
PRE-1997 COURT STRUCTURE

(Judicial Committee of) the Privy Council

Supreme Court (High Court & Court of Appeal)

District Court

Magistrates’ Court

Tribunal & Coroner’s Court

POST-1997 COURT STRUCTURE
BASIC LAW & THE STRUCTURE OF COURT

Article 83 of the Basic Law

 the structure, powers and functions of the courts at all levels shall be prescribed by law.

Article 81(1) of the Basic Law

 the “Court of Final Appeal, the High Court, district courts, magistrates’ courts and other special courts” shall be
established and defines the High Court as comprising the Court of Appeal and the Court of First Instance.
MAJOR LAW COURTS
MAGISTRATES’ COURTS

Magistrates’ Courts
 primarily criminal courts
 All criminal cases start here, even murder cases
 Magistrate is sole decision-maker
 Power of sentence: a maximum of two years’ imprisonment (for single offence) and a fine of HK$100,000,
 also issue warrants for arrest and “summonses“ (orders for persons to attend court and give evidence)

 7 magistracies in different district

 hear over 90% of all criminal cases in HK
 presided over by either permanent, legally trained magistrates or special magistrates
MAJOR LAW COURTS
THE DISTRICT COURT

District Court
 both civil and criminal jurisdiction
 judges sit alone without a jury

Criminal jurisdiction
 More serious offences i.e. Dangerous driving causing death, money laundering,
 The maximum term of imprisonment is 7 years.

Civil jurisdiction
 the amount involved is more than $75,000 but does not exceed $3,000,000
MAJOR LAW COURTS
THE COURT OF FIRST INSTANCE (CFI)
The Court of First Instance
 Unlimited jurisdiction
 exercise "original", “appellate” and “supervisory" jurisdiction

Criminal jurisdiction
 deals with the most serious criminal offences tried “on indictment"
 CFI judge will sit with a jury of 7 or, 9 (on certain occasions)

Civil jurisdiction
 CFI judge sits alone and is responsible for determining all matters of fact and law
 unlimited civil jurisdiction
MAJOR LAW COURTS
THE COURT OF APPEAL (CA)
The Court of Appeal
 formerly the highest court situated in HK but now this role is performed by the Court of Final Appeal
 part of the High Court (together with the Court of First Instance)
 Role of “Appellate” Court - exercises appellate jurisdiction in relation to civil and criminal matters i.e. review of
sentences from the Secretary for Justice and rulings on questions of law
 Normally heard by 3 judges

What is Appeal ?
 A losing party who is not satisfied with a decision of a trial judge can apply for leave (permission) to appeal
 The right of appeal is not automatic
 The appeals system is dependent on the court hierarchy since appeals are made from lower courts to higher
ones
 Usually on question of law rather than based merely on dispute as to the facts
MAJOR LAW COURTS
THE COURT OF FINAL APPEAL (CFA)

The Court of Final Appeal

 Power to confirm, reverse or vary the decision of any court from which appeal lies.
 Consent of the CA or the CFA itself is required before a case be heard
 Normally have 5 Judges sitting
 usually consisting of the Chief Justice
 at least 3 permanent judges; and
 a non-permanent judge from Hong Kong or ”overseas” (from another common law
jurisdiction)
HONG KONG COURTS AND APPEALS
HONG KONG COURTS AND APPEALS

Court of First Instance

Small Claim Magistrates’ Labour The Obscene

Tribunal Court Tribunal Articles Tribunal
TRIBUNALS

4 tribunals under the administration of the Hong Kong Judiciary Office:

 The Lands Tribunal,
 the Labour Tribunal,
 The Small Claims Tribunal and
 the Obscene Articles Tribunal

 The purpose of tribunals  provide speedier, cheaper and more specialised service in specific areas
 Decision binding on the parties concerned, but not "courts of record", their decisions need not be followed by
other courts or tribunals
 Legal representation is either not found or is not permitted before tribunal
CORONER’S COURT

 Neither truly criminal courts nor civil ones

 Function: ascertain the cause of death in cases of “reportable death” in the following circumstances : -
a) sudden death
b) accidental death
c) violent death
d) death in suspicious circumstances
e) where a dead body is found within / brought into Hong Kong
 relatively small in scale, dealing with less than 500 cases a year
 may make recommendations to attempt to avoid recurrence
THE SMALL CLAIMS TRIBUNAL
 as a "simple, inexpensive and informal forum for settling claims for $75,000 or less.

 The parties normally appear in person and Legal representation is not permitted

 include claims relating to debts, or to the sale and supply of goods or services, claims for arrears of rent and
claims arising from minor road accidents.

 Proceedings in the Tribunal are conducted generally in Cantonese

 A right of appeal on a point of Law, to the Court of First Instance

THE LABOUR TRIBUNAL
 established in 1973
 handles disputes between employers and employees; involving alleged breaches of employment or apprenticeship
contracts lodged by either employers or employees
 consider any dispute involving a claim for over $8,000; no financial limit on its jurisdiction
 procedures are quick, informal and as a result inexpensive
 Legal representation is not permitted
 Proceedings in the Tribunal are conducted generally in Cantonese
 Appeals may be made on a point of law to the Court of First Instance

 Types of claim made by employees are:

 wages due for work done; terminal payments;
 wages in lieu of notice of termination;
 statutory holiday pay; annual leave pay;
 sickness allowance; maternity leave pay, etc
LANDS TRIBUNAL
 Created by the Lands Tribunal Ordinance,
 deals with various types of land-related case including:
 Tenancy dispute;
 claims for possession of premises by landlords;
 building management cases; and
 appeals concerning rates and Government rent.

 Same power to grant remedies as the CFI

 Unlimited jurisdiction to determine the amount of compensation payable by the Government (on a compulsory
purchase (“resumption”) order)

 Legal representation is permitted before the Tribunal

THE OBSCENE ARTICLES TRIBUNAL

 established following the commencement of the Control of Obscene and

Indecent Articles Ordinance (COIAO), in 1987
 “classify” articles submitted to it by writers, publishers, distributors etc and to
make a “determination'’ of articles
 its function is to prohibit "obscene’' articles and to restrict indecent ones
 Criticism: lacks transparency and does not always deliver reasoned decisions
 A right of appeal to the Court of First Instance