The Basic law and the Court and Legal system (2).docx

The Basic law and the Court and Legal system (2)The criminal lawInformation based on the Departmental publication Legal System in Hong Kong printed in 2008; please refer to the websites concerned, as provided, for more detailed or latest information regarding the issues involved.Criminal prosecutionsThe Secretary for Justice has overall responsibility for the conduct of prosecutions in Hong Kong. It is for the Secretary and those who prosecute on the Secretarys behalf to decide whether or not a prosecution should be instituted in any particular case or class of cases.In prosecutions for serious or complicated offences, or those which give rise to difficult points of law, police officers and other law enforcement agents will seek the advice of the Secretary for Justice or of counsel in the Prosecutions Division of the Department of Justice. In determining whether or not to prosecute, the Secretary for Justice considers two issues: first, is the evidence sufficient to justify the institution of proceedings? Second, if it is, does the public interest require a prosecution to take place? In making that decision the Secretary for Justice is not subject to any instructions or directions from the executive.In practice, many prosecutions at the summary level involve simple cases which are processed by the Police or other investigative bodies and do not require the specific involvement of the Secretary for Justice. At the same time, all such cases are scrutinised at the Magistrates Courts by Senior Court Prosecutors acting on behalf of the Secretary.The jury systemThe most serious criminal offences, such as murder, manslaughter, rape, armed robbery and certain drug offences, are tried by a judge of the Court of First Instance, sitting with a jury of seven people or, where a judge so orders, nine. It is the jury which decides whether the accused is guilty or not guilty. A judge will urge a jury to strive for unanimity in reaching their verdict, but a jury may return a majority verdict of five to two or seven to two.The purpose of a death inquest is to establish the identity of a deceased person and the cause of and circumstances connected with the death. In certain defined cases, an inquest must be held with a jury. In these cases, and in any other case in which the Coroner decides to hold an inquest with a jury, a jury of five is appointed.The Basic Law expressly provides that the principle of trial by jury is maintained.Principles of defenceA number of principles of defence, which are in accordance with Article 14 of the International Covenant on Civil and Political Rights (which has been applied to Hong Kong by the Hong Kong Bill of Rights Ordinance (Cap 383), have been incorporated in the Criminal Procedure Ordinance (Cap 221), Legal Aid in Criminal Cases Rules (Cap 221D), or absorbed into the common law. The Basic Law guarantees the preservation of these rights, which are: equality before the courts; the right to a fair and public trial by a competent, independent and impartial tribunal established by law; the right to trial by jury in the most serious cases; the presumption of innocence; the burden of proof lies on the prosecution; the standard of proof is one of beyond reasonable doubt; the right to prompt and detailed information as to the nature and cause of the charge; adequate time for preparation of the defence case; the right to legal representation; the right to be tried without undue delay; the right to legal assistance; the right to be tried in ones presence; the right to call witnesses and secure their presence in court; the right to cross-examine prosecution witnesses; the right to have the free service of an interpreter; the right to remain silent in court; the right to appeal against conviction and/or sentence; the right not to be tried or punished for an offence for which one has previously been convicted or acquitted; and the right to bail pending trial or appeal (subject, however, to the gravity of the offence charged and all the surrounding circumstances).The civil lawInformation based on the Departmental publication Legal System in Hong Kong printed in 2008; please refer to the websites concerned, as provided, for more detailed or latest information regarding the issues involved.The main difference between criminal and civil proceedings is that the former are instituted in the name of the HKSAR to suppress crime and to punish criminals, while the latter are taken to protect and to recover property and to enforce obligations.While civil proceedings are often taken by the government against individuals, including corporations, and vice versa, such proceedings are more commonly instituted by individuals against other individuals.The burden of proof is easier to discharge in a civil case than in a criminal case, the standard of proof being one based on the balance of probabilities.The principal branches of the civil law include contract, tort, property, administrative, family and revenue law. The law of contract is concerned with the many different types of agreements into which persons, including corporations, enter in going about their daily business. As one of the worlds major financial and commercial centres, Hong Kong sees an immense number of corporate and financial agreements entered into each year. One important function of a lawyer is to ensure that such contracts are drafted clearly in an endeavour to prevent disputes arising.The law of tort is concerned with claims arising out of breaches of a duty of care owed by one individual to another.The law of property governs the ownership of, and rights in, property including land and buildings and intellectual property such as trademarks, patents and copyright.Administrative law is designed to protect the individual against an abuse of power by the government or public bodies.Family law deals with, amongst other things, divorce and disputes over the custody of children, maintenance of spouse and children, and the division of property.Revenue law is relevant to the assessment and recovery of taxes and duties.The courtsIn July 1995, the Official Languages Ordinance (Cap 5) was amended to enable any court to use either or both of the official languages in any proceedings before it as it thinks fit; to enable a party or his legal representatives or a witness in proceedings in a court to use either or both the official languages, or such other language as the court may permit; to provide that the decision of a court to use one of the official languages in any proceedings before it, is final; and to empower the Chief Justice to make rules and issue practice directions to regulate the use of Chinese language in the courts.Efforts are being made on various fronts to improve the use of Chinese in the higher courts. A Practice Direction on the use of Chinese in the Court of First Instance has been prepared by the Judiciary. Training for bilingual judges has also been introduced, including the provision of courses on Chinese judgment writing skills.No matter whether English or Chinese is used in the proceedings, everyone has a right to use the language of his choice to give evidence. The court will arrange interpretation facilities.The legal professionInformation based on the Departmental publication Legal System in Hong Kong printed in 2008; please refer to the websites concerned, as provided, for more detailed or latest information regarding the issues involved.The legal profession in Hong Kong is divided into two distinct branches - barristers (also known as counsel) and solicitors. Solicitors have limited rights of audience before the courts whereas barristers have unlimited rights of audience in all courts and tribunals where legal representation is allowed. Lawyers practising within one branch of the profession are not, at the same time, allowed to practise within the other.While the majority of members of the legal profession are engaged in private practice, a significant number work in one of the government legal departments (such as the Department of Justice or the Legal Aid Department), or are employed as legal advisers to public or private companies, or engaged in teaching and research at one of Hong Kongs tertiary institutionsThe courtsInformation based on the Departmental publication Legal System in Hong Kong printed in 2008; please refer to the websites concerned, as provided, for more detailed or latest information regarding the issues involved.The courts of justice in Hong Kong are the Court of Final Appeal, the High Court (which comprises the Court of Appeal and the Court of First Instance), the District Court, the Magistrates Courts, the Coroners Court, and the Juvenile Court. In addition, there are a number of tribunals which have jurisdiction to adjudicate on disputes relating to specific, defined areas. These include the Lands Tribunal, the Labour Tribunal, the Small Claims Tribunal and the Obscene Articles Tribunal.Court of Final AppealThe Joint Declaration and the Basic Law specifically guarantee the establishment on 1 July 1997 of a Hong Kong based Court of Final Appeal, and this replaced the Judicial Committee of the Privy Council in London as the final appellate court for Hong Kong. It has jurisdiction conferred on it by the Hong Kong Court of Final Appeal Ordinance (Cap 484).Under the provisions in the Basic Law and the Hong Kong Court of Final Appeal Ordinance (Cap 484), the judges of the Court of Final Appeal are appointed by the Chief Executive, in accordance with the recommendations of an independent commission, and those appointments must be endorsed by the legislature.The Hong Kong Court of Final Appeal Ordinance provides that an appeal shall be heard and determined by the Court constituting the Chief Justice, three permanent judges and one non-permanent Hong Kong judge or one judge from another common law jurisdiction.High CourtThe High Court comprises the Court of Appeal and the Court of First Instance.Court of AppealThe Court of Appeal hears appeals on all matters, civil and criminal, 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.Court of First InstanceThe jurisdiction of the Court of First Instance is unlimited in both criminal and civil matters. The latter include divorce, admiralty, bankruptcy, company winding-up, adoption, probate and lunacy. The Court of First Instance also exercises appellate jurisdiction in hearing appeals from the Magistrates Courts, the Labour Tribunal, the Small Claims Tribunal and the Obscene Articles Tribunal.District CourtThe District Court has limited jurisdiction in both civil and criminal matters. It has civil jurisdiction to hear monetary claims over $50,000, but not more than $1,000,000. In the case of claims for recovery of land, or where the title to an interest in land comes in question, the annual rent or rateable value or the annual value must not exceed $240,000. Apart from its general civil jurisdiction, the District Court has exclusive jurisdiction over claims brought under the Employees Compensation Ordinance (Cap 282), tax recovery claims under the Inland Revenue Ordinance (Cap 112) and distress for rent under the Landlord and Tenant (Consolidation) Ordinance (Cap 7). Matrimonial causes and adoption applications must also be commenced in the District Court (the court which handles these types of cases is known as the Family Court).In its criminal jurisdiction, the court may try the more serious cases 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. It also exercises limited appellate jurisdiction in hearing appeals from tribunals and statutory bodies conferred on it under various ordinances, including the Stamp Duty Ordinance (Cap 117), the Pneumoconiosis (Compensation) Ordinance (Cap 360) and the Occupational Deafness (Compensation) Ordinance (Cap 469).Magistrates CourtsMagistrates exercise a criminal jurisdiction, which covers a wide range of indictable and summary offences. Their powers of punishment are generally restricted to a maximum of two years imprisonment, or a fine of $100,000, but in respect of certain offences their powers are greater.All indictable offences originate before a magistrate. The Secretary for Justice may apply to have a case transferred to the District Court or committed to the Court of First Instance depending on the seriousness of the case. Appeals are brought from a magistrate to a judge of the Court of First Instance.Special magistrates may be qualified lawyers or persons with substantial experience in the legal field. They deal with cases of a more routine nature, such as hawking and minor traffic cases. In general, they have no power of imprisonment and can only impose a maximum fine of $50,000.Coroners CourtThe Coroners Court inquires into deaths which occur as a result of accident or violence, or under suspicious circumstances, when a person dies suddenly, or when a dead body is found in or brought into Hong Kong.Juvenile CourtThe Juvenile Court has jurisdiction to hear charges against children (aged under 14) and young persons (aged between 14 and 16) for any offence other than homicide. Children under the age of 10 are deemed not to have reached the age of criminal responsibility and accordingly no court, including the Juvenile Court, has jurisdiction over cases involving such young people. However, the Juvenile Court does have power to deal with care and protection cases involving young people aged up to 18.Lands TribunalThe four principal judicial functions of the Lands Tribunal are to: determine the sums payable by the Government and others for compensation to persons whose land is compulsorily resumed or the value of which is reduced because of public or private developments; determine building management disputes; determine appeals from decisions of the Commissioner of Rating and Valuation and appeals against the assessment of the prevailing market value of property made by the Director of Housing; and determine all matters under the Landlord and Tenant (Consolidation) Ordinance (Cap 7).Labour TribunalThe Labour Tribunal provides a quick, inexpensive and informal method of settling disputes between employees and employers. No legal representation is allowed. It deals with claims arising from the alleged breach of a term of a contract of employment, for wages in lieu of notice of termination of service, arrears of wages, statutory holiday pay, annual leave pay, sickness allowance, maternity leave pay, bonus, double pay, severance pay, long service payments and so on.The JudiciaryInformation based on the Departmental publication Legal System in Hong Kong printed in 2008; please refer to the websites concerned, as provided, for more detailed or latest information regarding the issues involved.The Hong Kong courts are operated by the Hong Kong Judiciary, independently both of the executive and the legislature. The Chief Justice is the head of the judiciary, both in a judicial and an administrative sense. He is assisted on the administrative support side by a Judiciary Administrator, ranked at the same level as a policy secretary. On the judicial side, the open courts at the various levels described in Chapter 8 are presided over by judges with professional legal qualifications and experience from both Hong Kong and other common law jurisdictions. Some senior judges are recruited from amongst eminent local barristers, others are promoted from within the judiciary or recruited from senior posts in the Department of Justice. They all make their judgments independently, subject to appeal as laid down by law. In addition, there are a Registrar and Deputy Registrars who relieve the judges of much chambers work (i.e. the work done before, after or instead of full court proceedings).Under the Basic Law, judges are appointed by the Chief Executive of the HKSAR on the recommendation of the Judicial Officers Recommendation Commission. This is an independent statutory body constituted under the Judicial Officers Recommendation Commission Ordinance (Cap 92), composed of local judges, persons from the legal profession and eminent persons from other sectors. The Chief Justice of the Court of Final Appeal and the Chief Judge of the High Court must be Chinese citizens who are permanent residents of Hong Kong with no right of abode in any foreign country. All judges and magistrates must have been qualified as legal practitioners either in Hong Kong or in another common law jurisdiction and have had substantial professional experience.Judges have security of tenure until they reach retirement age (which, depending on their date of appointment, is either 60 or 65 years for District Court judges and 65 for judges of the Court of Final Appeal and the High Court). The Basic Law stipulates that a judge may only be removed for inability to discharge his or her duties, or for misbehaviour, by the Chief Executive on the recommendation of a tribunal appointed by the Chief Justice of the Court of Final Appeal, consisting of not fewer than three local judges. In the case of the Chief Justice, the tribunal (appointed by the Chief Executive) must consist of not fewer than five local judges. In addition, before a judge of the Court of Final Appeal or the Chief Judge of the High Court may be removed from office, the Basic Law stipulates that the endorsement of the Legislative Council is required.The independence of the judiciary, in Hong Kong as elsewhere, is esse