Introduction to Legal System

LT2 - The Legal System of Hong Kong

Defining a Legal System

 System: described in Wesley-Smith (1998:3) as a body of

rules and principles, processes, institutions and personnel

 Legal system: described in Wesley-Smith (1998:3) as one in

which the primary concern of its components is the creation
and regulation of law
Defining a Legal System

 Collection of laws
 Ordinances, rules regulations and by-laws

 System of Government
 The Procedure i.e. processes for making and imposing the law
 Institution and agencies
• Legislative Council
• Law enforcement agencies i.e. police
• Court, Judges and Lawyers
Defining a Legal System

 Ideologies and philosophies

 Rule of law
 Common Law
 Human right

 HK – based on “one country, two systems”

The Components of a Legal System
 The law (legal rules, precepts and orders)

 Institutions (legislative, judicial and executive powers)

 Legal personnel (legislators, judicial officers and other court

officials, legal officers, police, lawyers and litigants)

 In simple terms, the institutions of the State, key legal personnel and
legal processes combine to enable the law (i.e. legal rules, precepts,
orders) to best serve its purpose
Underlying Principles of the
Hong Kong Legal System

Rule of Law

Separation of Judicial
Powers Independence
Introducing the rule of law

It is the underlying basis for all our laws and

administration

The emphasis of the rule of law is on being able to

conduct one’s life without being frustrated by the
arbitrariness of the government

There must be laws to enhance the predictability of the

law
 Introducing the rule of law

 The four levels of Rule of Law –

Justice through
law
以法達義
Limitation of power by
law
以法限權

Regulation by law
有法必依

Observance of law
有法可依
Introducing the rule of law
 Aristotle (Greek philosopher) 384 BC:

“It is better for the law to rule than one of the citizens, so even the
guardians of the laws are obeying the laws.”

 Dicey (Oxford Professor of English Law) 1885:

provided the logical foundation upon which the modern notion of the
rule of law

 Lord Bingham : modern view

Dicey’s Rule of Law
1. Supremacy of the Law
No man is punishable or can be lawfully made to suffer in body or
goods except for a distinct breach of law established in the ordinary
legal manner before the ordinary courts of the land

2. Equality before the Law

No man is above the law; every man and woman, whatever be his or
her rank or condition, is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary courts; and

3. Rights of citizens
The general principles of the constitution are the result of judicial
decisions determining the rights of private persons in particular cases
brought before the courts
Lord Bingham’s Eight principles of Rule of Law

1. The law must be accessible, clear & predictable.

2. Questions of legal rights should be resolved by the law and not the
exercise of discretion.
3. The law should apply equally to all, except where objective differences
justify differentiation.
4. Ministers must act within their powers and not exceed their limits.
5. The law must afford adequate protection of fundamental human rights.
6. The law should provide access to justice, especially where people cannot
resolve inter-personal disputes themselves.
7. Courts and tribunal processes should be fair.
8. The state should comply with international law.
Understanding the rule of law

 At the heart of the [concept of the rule of law] is a respect for

the autonomy and dignity of the individual who is free to
make the choices in life that he/she so wishes, subject only to
the need to respect the autonomy and dignity of others and
the laws that govern wider society
Lady Justice –
What features of the Rule of Law does she symbolize?

 Unbiased

 Equality

 The force of law

How to attain the Rule of Law ?

 obedience of the law and respect for the law

• Nobody is above or beyond the law

 Separation of powers
• Avoid abuse of power; check and balance

 Judicial independence
 reviews constitutionality of laws and legality of executive
actions
The components of the rule of law

 Judicial independence

 Equality before the law & Access to justice

 Supremacy of the Law

 The right to a fair trial

 Implementation of Rule of Law in Hong Kong

Judicial Article 2, 12 19 & 85 of the Basic Law

Independence Common Law system maintained in HK
Equality before the
law

Restrictions on
government power

Protection of
individual rights
 Implementation of Rule of Law in Hong Kong

Judicial
Independence
Access to Justice – Article 35 of the Basic
Equality before the Law
law
Legal aid services are provided for those who
Restrictions on have reasonable grounds for taking or
government power defending a legal action but lack the financial
resources.
Protection of
individual rights
The Duty Lawyer Service offers legal
assistance schemes in the Magistrates’ Courts
 Implementation of Rule of Law in Hong Kong

Judicial
Independence Article 11 of BL - No law enacted by the legislature of
the HKSAR shall contravene the Basic Law
Equality before the
law Article 35 of BL - all citizens can institute legal
Restrictions on proceedings in the courts against the executive
government power authorities

Protection of ICAC was established to clean up endemic corruption in

individual rights government departments and society via law enforcement,
prevention and community education. The ICAC is
independent of the Hong Kong Civil Service.
 Implementation of Rule of Law in Hong Kong

Judicial Crime suspects have the right to remain silent and can
Independence refuse to comment or provide an answer when
Equality before the questioned, either prior to or during legal proceedings
law in a court of law.
Chapter III of the Basic Law
Restrictions on
government power Articles 10 of Bill of Rights Ordinance (BORO) -
Equality before courts and right to fair and public
Protection of hearing
individual rights
Article 11 of BORO - Rights of persons charged with or
convicted of criminal offence
The components of the rule of law
 The separation of powers doctrine

- A principal safeguard against abuse of power

“The doctrine [of separation of powers] is concerned to ensure that

there is no actual or perceived alliance between the judiciary and the
other branches of government, particularly the Executive.

- How can this be achieved in practice?

The rule of law and the HKSAR

 ‘The experiment of ‘One country, Two systems’ is, in the final analysis, an
experiment in the practice of the rule of law” – Chen

 Requires respect for constitutional norms and freedoms

 Requires confidence in the courts

 Requires that citizens are able to exercise their legal rights

 The Rule of Law and the Basic Law
 The birth of the Basic Law

 The agreement reached in the Joint Declaration implemented in

the Basic Law

 The Basic Law is the fundamental document upon which the

legal system rest  continue to give effect to the rule of law

http://www.basiclaw.gov.hk/en/materials/FAQ/#q5
The Rule of Law and the Basic Law
 Chapter I sets out broad principles
 Chapter II sets out the provisions governing the relationship between
Hong Kong SAR and the Central Government
 Chapter III deals with the rights and duties of Hong Kong residents
 Chapter IV deals with the political structure of HKSAR
 Chapter V provides for the maintenance of an economic structure for
the SAR distinct from the PRC
 Chapter VI concerned with Education, Science, Culture, Sports,
Religion, Labour and Social Services of HKSAR
 Chapter VII is on External Affairs
 Chapter VIII deals with the interpretation and amendment of the
Basic Law
 Chapter IX Supplementary Provisions
The Rule of Law and the Basic Law
 Article 2 &12 – HKSAR is authorized to exercise a high degree of
autonomy and enjoy executive, legislative and independent judicial
power, including that of final adjudication
 Article 5 – the previous way of life remain unchanged for 50 years
 Article 8 & 18 - the laws previously in force in HK shall be maintained
 Article 11 - No law enacted by the legislature of the HKSAR shall
contravene the Basic Law
 Article 19 - Independent judicial power (except that the restrictions on
their jurisdiction imposed by the legal system and principles previously in
force in Hong Kong shall be maintained)
The Rule of Law and the Basic Law
Chapter III - the rights and duties of Hong Kong residents
 Article 25 - “all Hong Kong residents shall be equal before the law”
 Article 26 – right to vote (judicial review against the restriction on the
prisoner’s right to vote )
 Article 27 - freedom of speech and association
 Article 28 - “no Hong Kong resident shall be subjected to arbitrary or
unlawful arrest, detention, imprisonment or search”

 Article 35 provides that all citizens can institute legal proceedings in

the courts against the executive authorities
(you can sue the government!!!)
Challenges on the Rule of Law in Hong Kong
 Interpretation of the Basic Law
 By Court? by the NPCSC?

Directly  The Right of Abode cases

 Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4
• the first case to test the CFA’s power under the Basic Law

Indirectly  Congo case

 FG Hemisphere Associates LLC v. Democratic Republic of the Congo &
Ors
• First time since the Handover that the CFA has taken this step
 Brief Fact about the Congo Case
 In the 1980s, a Yugoslave company, Energoinvest, entered into contracts to
construct a hydro-electric facility and high-tension electric transmission lines in
Democratic Republic of the Congo (“the DRC”)
 By an Assignment dated 16 November 2004, Energoinvest’s interest in the
Awards was transferred to FG Hemisphere
 In a separate transaction, the DRC entered into a cooperation agreement with,
China Railway Group Limited. Under the joint venture agreement, the China
Railway group of companies would pay US$221 million as part of the entry fees
for a mining project in the DRC
 FG Hemisphere claimed the Entry Fees payable to the DRC and sought to
enforce the Awards against the DRC
 Judgment of Congo Case
 Judgment from Court of First Instance
 On 2008, FG Hemisphere obtained an order to enforce the Awards and enjoined the
China Railway Group from paying USD$104 million out of the Entry Fees to DRC
 DRC applied that it enjoyed state immunity and the courts of HKSAR did not have
jurisdiction to adjudicate the claims of FG Hemisphere against the DRC
 Judgment from Court of Appeal
 Restrictive doctrine continued to apply in the HKSAR by reference to the common law
 DRC could not assert immunity from suit
 Judgment from Court of Final Appeal
 The issue falls into category of foreign affairs
 Courts of the HKSAR did not have jurisdiction over the DRC
 The CFA felt compelled to refer certain questions of interpretation to the Standing
Committee of the National People's Congress ("SCNPC") under Article 158 of the
Basic Law
 Rule of Law &
Protection of Human Rights in HK

Universal Declaration of Human Rights: "It is essential, if

man is not to be compelled to have recourse, as a last resort,
to rebellion against tyranny and oppression, that human
rights should be protected by the rule of law". (as quoted by
Andrew Li Kwok Nang, 'The Importance of the Rule of Law'
(2013) 43 HKLJ 795)
 Rule of Law &
Protection of Human Rights in HK
Sources of law:
 Basic Law,
 International Covenant on Civil and Political Rights (ICCPR) as referred to in
Basic Law,
 HK Bill of Rights as incorporating ICCPR

 Restrictions to rights: principle of legality / legal certainty

- "prescribed by law", "in accordance with law"...
- "no more than necessary“
31 ICCPR

 (adopted as HKBoR art 16: Freedom of opinion and expression)

 European Convention on Human Rights
Human Rights Act 1998 (UK)
32
33 General Methodology:
necessity in democratic societies - comparisons
 Rule of Law &
Protection of Human Rights in HK
 The Doctrine of ultra vires
"In a society which aspires to be governed by the rule of law, the
Government has to derive its powers from the law. If it acts outside
its legal authority, it acts ultra vires and the Government's act can be
declared unlawful and set aside.“ (Law of the HK Constitution
[16.024])

 Foundation of Judicial Review

 Pop-up Quiz
 Will the following scenarios undermine the rule of law?

Scenario Undermining rule of law?

(Y/N)
1. In Country A, the Police is empowered to detain suspects of
a crime without a warrant.
2. A high end government official was found to have
committed a crime. The Court decides not to
charge him because the arrest of this official
would harm the country’s image and cause social
disharmony.
3. According to the law of Country C, people of a certain race
are not allowed to enter prestigious premises like 5 star
hotels and expensive restaurants.
 Pop-up Quiz
 Will the following scenarios undermine the rule of law?

Scenario Undermining rule of law?

(Y/N)
4. A political party encourages an 80 year old woman to
challenge the government by judicial review, which forces
the government to postpone a huge infrastructural project
and leads to loss of a large sum of public money.

5. Some post-80s occupied a road in Central during a

demonstration, causing disturbance to some members of the
public. These people were then arrested by the Police.
Conclusion
What Law School don’t tell you…