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An Introduction to the Hong Kong Legal System
This book has been revised to provide an updated overview of Hong Kong's legal system as a Special Administrative Region.
146 pages, Paperback
First published March 17, 1988
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August 24, 2013
HK legal system under British regime
A newbie to legal studies, I nontheless find author's introductory arguments intrinsically convincing. Under a clear structure of passage development, his interpretation of relationships between law, morality and justice are laconic and succinct.
Law and morality are different concepts. Laws can be morally positive or negative or neutral, law can be unanimously concurred, whereas moralities can reside in different forms. Laws require citizens legal duties to obey them, but compliance of morality is subject to individual's moral standards. Thus, law and morality influence each other. Moral attitude towards a conduct can be affected by whether law make that conduct illegal; many laws, such as criminal law, are based on and reflects moral ideas. General principle of legal system in HK implies a moral tenet that we are free to do as we will, provided that we do not interfere with the rights of others and there is no law against it. Legal interference with other's right is permissible only if clear advantage to the community is demonstrated.
Law and justice is much connected than law and morality. Justice referred here is the intended outcome of judicial function of legal system. HK legal system inclines to process rather than result and insists that justice is done when general rules and principles are applied in a formal, impartial fashion; the righteous process justifies the righteous ends, which is right, proper, or fair, or just. Such law is indifferent to the outcome, and justice lies more in the method of proceeding from premise to premise than in the conclusion.
Legitimacy of HK law requires justifications for two ideas:
1) its institutions are appropriate
2) the exercise of power by the present regime is both legally and politically justified
For 1), gov. argues that legal system makes a better gov. and public should accept the virtues of legality.
For 2), legal justification is that the Queen has permitted the legal system in HK; and the political one would be the fact the Britain's asserted control over Hong Kong.
At bottom, law is dependent upon politics. Law rationalizes political events and transforms a state of affairs caused by force into a situation governed by law. The constitution reflects and sustains victory on the battlefield, and legitimize compliance from fellow inhabitants under its jurisdiction.
Relationship between HK legal system under British regime and 1997 basic law
The written constitution will be entirely replaced by the basic law, but law previous in force, other than those made in the UK but including common law and equity, shall be maintained, unless they contravene the basic law, subject to amendment by the SAR legislature. The basic law intends to provide a framework in which the present legal system can continue.
For this review, I would like to focus on the practical aspects and structural components: HK court systems, HK appeal process and HK lawyers.
HK courts
Jurisdiction is equal to the extent of power. In a superior court, the power is unlimited, whereas in a inferior court, the power is limited, for instance, by the value of remedies. In practice, all courts in HK are inferior, because no outside issues are under jurisdiction of any HK courts.The court procedure can be original or appellate.Original means that the case is an original case, whereas "appellate" deals with whether any original cases can be applicable in the current situation.
The legal procedure can be inquisitorial and adversarial.In inquisitorial, the official are actively engaged in all court processes.In adversarial, the judge stands as a neutral referee, providing the basic jurisdictional foundations where lawyers from both sides can debated about the underlying through legal arguments.
Courts can also bear the two distinctive terms as criminal and civil. In "criminal" courts, Crown, the HK police department aka legal enforcement, is the prosecutor against criminal plaintiffs; whereas in a civil courts, disputes are settled between civilians. Although this is a rough definition, but legal practitioners can clearly distinguish the difference between these two situations.
Courts and tribunals are different names for courts, even though they are slightly different in some cases. Some tribunals are informal and reject the presence of lawyers. But there is no clear-cut definition that distinguish these two.
HK appeal process
For both civil and criminal cases, small claim tribunals and magistrate can upgrade their case to the high court, where cases from labour tribunal are also handled. Cases raised land tribunals and district courts will visit the court of appeal, which is one level higher than the high court. Above the court of appeal, is the Judicial Committee of the Privy Council, which is the final assurance of law's appropriateness in the commonwealth.
The sketches of aforementioned legal units are as follows:
1) Magistrate
Magistrate's first job is to deal with most minor crime, and her second job is to determine if there are adequate evidence for a proper trail to be held. If a proper trail stands, the accused will stand committed for trail in the High Court. A third function is to issue warrants, including awards compensation no greater than HK$5,000, issue sentence of no longer than 2 years in prison and a fine no greater than HK$10,000.
2) Small Claims Tribunal
It essentially deals with monetary claims no greater than HK$8,000.
3) Labour Tribunal
It deals with monetary claims arising from labour issues, such as employment contracts, employee rights, etc.
4) Lands Tribunal
Supplement the Small Claims Tribunal and labour Tribunal with expertise in respect of actions between landlords and tenants and of compensation claims under various ordinance relating to land.
5) District Court
It stands between magistrate and certain tribunals.Civil jurisdiction is limited to no greater than HK$60,00 of debt, demand or damage claims in contract or tort, no greater than HK$45,000 of recovery of land and equitable jurisdiction where the value of the interest is not greater than HK$60,000; Its criminal jurisdiction covers charges relating to indictable offenses which have been transferred by magistrates on application by the Attorney General.
Finally, its judge sits alone, without a jury, and can not sentence a convicted offender to a term of imprisonment longer than seven years.
6) High Court
The High Court is placed above District Court. In fact, the Supreme Court consists of both the High Court and the Court of Appeal. It is differentiated from the Court of Appeal in the sense that the High Court has a mostly original jurisdiction, whiles the Court of Appeal an almost entirely appellate jurisdiction.
7) Court of Appeal
Court of Appeal is the highest court that meets in HK. Appeals go to it from the High Court, District Court and various other tribunals. Questions of fact shall be predetermined elsewhere, since the Court of Appeal is concerned only with technical arguments about the law, and for most practical purposes it is the final arbiter of what Hong Kong law is.
HK lawyers
The book depicts HK lawyers as necessary and regrettable. Necessary as they are the corner stones of legal environments: juries can't ensure justice without a sizable legal force; regrettable as their service is expensive.
HK lawyers are divided into two identities or categories:Solicitors and BarristerIn a stereotyped view, Barristers appear on the court and solicitors do the paper works. However, solicitors can also appear on the court. In fact, average citizens would require help from only solicitors. The only condition for the service from Barristers would be extremely complicated cases.
Both types of lawyers are subject to different regulations. Solicitors are governed by their committees and HK legal doctrines. Barristers are evaluated only in disputes or potential frauds by Barrister-only committee, and the underlying rules for evaluation are made by the profession's committee, essentially themselves.Both solicitors and barristers need formal legal education from only two Universities in HK. The LLM postgraduate program requires four years, among which students can obtain legal status registration after the first year and participate two year apprentice in their last two years of the program.The separation of lawyer classes has not been seen in the US, Australia and many other Western countries. Critics from both sides assert that their lawyer systems are more cost-effective. We believe that such debate will not end soon, but there is little chance that the two-class lawyer system will be abolished soon.
A newbie to legal studies, I nontheless find author's introductory arguments intrinsically convincing. Under a clear structure of passage development, his interpretation of relationships between law, morality and justice are laconic and succinct.
Law and morality are different concepts. Laws can be morally positive or negative or neutral, law can be unanimously concurred, whereas moralities can reside in different forms. Laws require citizens legal duties to obey them, but compliance of morality is subject to individual's moral standards. Thus, law and morality influence each other. Moral attitude towards a conduct can be affected by whether law make that conduct illegal; many laws, such as criminal law, are based on and reflects moral ideas. General principle of legal system in HK implies a moral tenet that we are free to do as we will, provided that we do not interfere with the rights of others and there is no law against it. Legal interference with other's right is permissible only if clear advantage to the community is demonstrated.
Law and justice is much connected than law and morality. Justice referred here is the intended outcome of judicial function of legal system. HK legal system inclines to process rather than result and insists that justice is done when general rules and principles are applied in a formal, impartial fashion; the righteous process justifies the righteous ends, which is right, proper, or fair, or just. Such law is indifferent to the outcome, and justice lies more in the method of proceeding from premise to premise than in the conclusion.
Legitimacy of HK law requires justifications for two ideas:
1) its institutions are appropriate
2) the exercise of power by the present regime is both legally and politically justified
For 1), gov. argues that legal system makes a better gov. and public should accept the virtues of legality.
For 2), legal justification is that the Queen has permitted the legal system in HK; and the political one would be the fact the Britain's asserted control over Hong Kong.
At bottom, law is dependent upon politics. Law rationalizes political events and transforms a state of affairs caused by force into a situation governed by law. The constitution reflects and sustains victory on the battlefield, and legitimize compliance from fellow inhabitants under its jurisdiction.
Relationship between HK legal system under British regime and 1997 basic law
The written constitution will be entirely replaced by the basic law, but law previous in force, other than those made in the UK but including common law and equity, shall be maintained, unless they contravene the basic law, subject to amendment by the SAR legislature. The basic law intends to provide a framework in which the present legal system can continue.
For this review, I would like to focus on the practical aspects and structural components: HK court systems, HK appeal process and HK lawyers.
HK courts
Jurisdiction is equal to the extent of power. In a superior court, the power is unlimited, whereas in a inferior court, the power is limited, for instance, by the value of remedies. In practice, all courts in HK are inferior, because no outside issues are under jurisdiction of any HK courts.The court procedure can be original or appellate.Original means that the case is an original case, whereas "appellate" deals with whether any original cases can be applicable in the current situation.
The legal procedure can be inquisitorial and adversarial.In inquisitorial, the official are actively engaged in all court processes.In adversarial, the judge stands as a neutral referee, providing the basic jurisdictional foundations where lawyers from both sides can debated about the underlying through legal arguments.
Courts can also bear the two distinctive terms as criminal and civil. In "criminal" courts, Crown, the HK police department aka legal enforcement, is the prosecutor against criminal plaintiffs; whereas in a civil courts, disputes are settled between civilians. Although this is a rough definition, but legal practitioners can clearly distinguish the difference between these two situations.
Courts and tribunals are different names for courts, even though they are slightly different in some cases. Some tribunals are informal and reject the presence of lawyers. But there is no clear-cut definition that distinguish these two.
HK appeal process
For both civil and criminal cases, small claim tribunals and magistrate can upgrade their case to the high court, where cases from labour tribunal are also handled. Cases raised land tribunals and district courts will visit the court of appeal, which is one level higher than the high court. Above the court of appeal, is the Judicial Committee of the Privy Council, which is the final assurance of law's appropriateness in the commonwealth.
The sketches of aforementioned legal units are as follows:
1) Magistrate
Magistrate's first job is to deal with most minor crime, and her second job is to determine if there are adequate evidence for a proper trail to be held. If a proper trail stands, the accused will stand committed for trail in the High Court. A third function is to issue warrants, including awards compensation no greater than HK$5,000, issue sentence of no longer than 2 years in prison and a fine no greater than HK$10,000.
2) Small Claims Tribunal
It essentially deals with monetary claims no greater than HK$8,000.
3) Labour Tribunal
It deals with monetary claims arising from labour issues, such as employment contracts, employee rights, etc.
4) Lands Tribunal
Supplement the Small Claims Tribunal and labour Tribunal with expertise in respect of actions between landlords and tenants and of compensation claims under various ordinance relating to land.
5) District Court
It stands between magistrate and certain tribunals.Civil jurisdiction is limited to no greater than HK$60,00 of debt, demand or damage claims in contract or tort, no greater than HK$45,000 of recovery of land and equitable jurisdiction where the value of the interest is not greater than HK$60,000; Its criminal jurisdiction covers charges relating to indictable offenses which have been transferred by magistrates on application by the Attorney General.
Finally, its judge sits alone, without a jury, and can not sentence a convicted offender to a term of imprisonment longer than seven years.
6) High Court
The High Court is placed above District Court. In fact, the Supreme Court consists of both the High Court and the Court of Appeal. It is differentiated from the Court of Appeal in the sense that the High Court has a mostly original jurisdiction, whiles the Court of Appeal an almost entirely appellate jurisdiction.
7) Court of Appeal
Court of Appeal is the highest court that meets in HK. Appeals go to it from the High Court, District Court and various other tribunals. Questions of fact shall be predetermined elsewhere, since the Court of Appeal is concerned only with technical arguments about the law, and for most practical purposes it is the final arbiter of what Hong Kong law is.
HK lawyers
The book depicts HK lawyers as necessary and regrettable. Necessary as they are the corner stones of legal environments: juries can't ensure justice without a sizable legal force; regrettable as their service is expensive.
HK lawyers are divided into two identities or categories:Solicitors and BarristerIn a stereotyped view, Barristers appear on the court and solicitors do the paper works. However, solicitors can also appear on the court. In fact, average citizens would require help from only solicitors. The only condition for the service from Barristers would be extremely complicated cases.
Both types of lawyers are subject to different regulations. Solicitors are governed by their committees and HK legal doctrines. Barristers are evaluated only in disputes or potential frauds by Barrister-only committee, and the underlying rules for evaluation are made by the profession's committee, essentially themselves.Both solicitors and barristers need formal legal education from only two Universities in HK. The LLM postgraduate program requires four years, among which students can obtain legal status registration after the first year and participate two year apprentice in their last two years of the program.The separation of lawyer classes has not been seen in the US, Australia and many other Western countries. Critics from both sides assert that their lawyer systems are more cost-effective. We believe that such debate will not end soon, but there is little chance that the two-class lawyer system will be abolished soon.
March 7, 2020
A good introductory text. Succinct yet not compromised on details.
Displaying 1 - 2 of 2 reviews