Legal System and the Judiciary under business environment in Hong Kong

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2020-07-14

Legal System and the Judiciary – The Basic Law

Under the Basic Law of Hong Kong, it exercises the judicial power of the Region and is independent of the executive and legislative branches of the Government. The courts in Hong Kong hear and adjudicate all prosecutions and civil disputes, including all public and private law matters.

The rule of law and the independence of the Judiciary are the cornerstone of the Hong Kong Legal system. Under the “One Country, Two Systems” policy, Hong Kong has its own legal system based on the common law, and local legislation codified in the laws of Hong Kong. Laws in force in Hong Kong include

  1. The Basic Law
  2. PRC national laws listed in Annex III to the Basic Law as applied to Hong Kong;
  3. The laws previously in force in Hong Kong before 1st July 1997, including
    • The Common Law
    • Rules of equity, ordinances, subordinate legislation and customary law, except for any that contravene the Basic Law, and
    • Subject to any amendment by LegCo;
  4. Law enacted by LegCo. Legislation in force in Hong Kong

 

The Basic Law provides that the Department of Justice (“DoJ”) controls criminal prosecutions, free from any interference. The Judiciary, i.e. the courts of Hong Kong, is responsible for the administration of justice in Hong Kong and the adjudication of cases, criminal and civil, in accordance with laws. DoJ exercises judicial power independently, free from any interference. It is fundamental to Hong Kong’s legal system that members of the Judiciary are independent of the executive and legislative arms of Hong Kong.

 

The Courts

The courts of Hong Kong comprise the Court of Final Appeal, the High Court (which consists of the Court of Appeal and the Court of First Instance), the District Court, the Magistrates’ Courts and other specialised Courts and Tribunals.

 

The Court of Final Appeal

The Court of Final Appeal is the final appellate court within the court system with the power of final adjudication. It hears appeals involving important question of law, including in particular points of public and constitutional importance. Or where leave to appeal has otherwise been granted as provided in the governing ordinance. There are one Chief Justice, three Permanent Judges, and 15 Non-Permanent Judges. Final appeals are heard by the full court comprising 5 judges, usually including the Chief Justice, 3 permanent members and one non-permanent member.  Court of Final Appeal may require invite judges from other common law jurisdictions to sit on the court and a number of distinguished judges from the United Kingdom, Australia and New Zealand have sat and continue to sit as members of the court.

 

The Court of Appeal of the High Court

The Court of Appeal of the High Court hears appeals on civil and criminal matters from the Court of First Instance and the District Court, as well as appeals from the Lands Tribunal. It also makes rulings on questions of law referred to it by the lower courts. There are 13 Justices of Appeal, including the Chief Judge of the High Court and 3 Vice-Presidents.

 

The Court of First Instance of the High Court

The Court of First Instance of the High Court, comprising 27 Judges. Also it has unlimited jurisdiction in both civil and criminal matter. In its appellate jurisdiction, it hears appeals from the Magistrates’ Courts and other tribunals. The most serious offences, such as murder, manslaughter, rape, armed robbery, complex commercial fraud and drug offences involving large quantities, are tired in the Court of First Instance, by a judge sitting with a jury of 7 (or 9 on the special direction of the judge)

 

The District Court

The District Court has limited jurisdiction in both civil and criminal matters. In its criminal jurisdiction, the court may try the more serious offences with the exception of a few very serious offences such as murder, manslaughter and rape. The maximum term of imprisonment it can impose is seven years. There are 43 District Judges, including the Chief District Judge.

 

The Magistrates’ Courts

The Magistrates’ Courts exercise criminal jurisdiction over a wide range of offences. Although there is a general limited of two years imprisonment. Or a fine of HK$100,000 certain statutory provisions give magistrates the power to sentence up to 3 years’ imprisonment and to impose a fine up to HK$5 million. Prosecution of indictable offences commences in the Magistrates’ Courts. Depending on the seriousness of a case, the DoJ may apply to have a case transferred to the District Court. Or committed to the Court of First Instance of the High Court. As at 8 February 2018, there were 72 magistrates sitting in 7 Magistrates’ Courts.

 

For further information, please contact us.

 

You may want to read: WHAT IS THE LEGAL ENVIRONMENT LIKE IN HONG KONG?

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