The legal system of the Hong Kong
The legal system of the Hong Kong Special Administrative Region (HKSAR) is based on the rule of law and the independence of the judiciary. The constitutional framework for the legal system is provided by the Basic Law enacted by the National People’s Congress of the People’s Republic of China (PRC) in accordance with Article 31 of the Constitution of the PRC. Under the principle of ‘one country, two systems’, the HKSAR legal system, which is different from that of Mainland China, is based on the common law, supplemented by statutes. All legislation in force in the HKSAR is accessible on the internet at Hong Kong e-Legislation (https://www.elegislation.gov.hk).
Law in the HKSAR: The laws in force in the HKSAR include:
(1) the Basic Law;
(2) national laws listed in Annex III to the Basic Law as applied to the HKSAR;
(3) the laws, including the common law and the rules of equity, in force before July 1, 1997, except for any that contravenes the Basic Law or amended by the legislature of the HKSAR; and
(4) laws enacted by the legislature of the HKSAR. National laws relating to defence, foreign affairs and other matters outside the limits of the autonomy of the HKSAR may be listed in Annex III to the Basic Law for application in the HKSAR by way of promulgation or legislation by the HKSAR. Currently, 13 national laws are included in Annex III to the Basic Law.
It is fundamental to Hong Kong’s legal system that members of the judiciary are independent of the executive authorities and legislature. The courts of justice in Hong Kong comprise the Court of Final Appeal, the High Court (which includes the Court of Appeal and the Court of First Instance), the District Court (which includes the Family Court), the Competition Tribunal, the Lands Tribunal, the Magistrates’ Courts (which include the Juvenile Court), the Coroner’s Court, the Labour Tribunal, the Small Claims Tribunal and the Obscene Articles Tribunal.
Department of Justice:
There are 7 professional divisions in the Department responsible for legal work. The Department is headed by the Secretary for Justice, who is a member of the Executive Council and is the Government’s chief legal adviser. The Secretary has ultimate responsibility for the prosecution of all offences in the HKSAR.
1. The Secretary for Justice’s Office
The Secretary for Justice’s Office provides legal and administrative support in respect of the Secretary for Justice’s many functions. This includes assisting the Secretary in all matters related to the Executive and Legislative Councils, be it the promotion of legislation or providing answers to legislators’ questions. Members of the office ensure that the Secretary is fully briefed on the issues which arise, assist in the analysis of those issues, and help to prepare speeches and responses.
2. The Prosecutions Division
The role of the Prosecutions Division is to prosecute trials and appeals on behalf of the HKSAR, to provide legal advice to law enforcement agencies upon their investigations, and generally to exercise on behalf of the Secretary for Justice the discretion whether or not to bring criminal proceedings in the HKSAR. In addition, counsel in the division provide advice and assistance to government bureaus and departments in relation to any criminal law aspects of proposed legislation.
3. The Legal Policy Division, as well as the Secretary for Justice’s Office, provides professional support in the execution of the Secretary for Justice’s duties and provides input on all legal policy issues being considered by the Government. The division advises on issues relating to the administration of justice, the legal system, the legal profession, human rights, the Basic Law, constitutional development and electoral affairs and the law of Mainland China. The Law Reform Commission Secretariat, which provides research and secretarial support to the Commission, is within the division.
4. The Civil Division provides legal advice to the Government on civil law, drafts commercial contracts and franchises and conducts civil litigation, arbitration and mediation on behalf of the Government. The Mediation Team of the division, jointly with the Arbitration Unit of the Legal Policy Division, pursues the policy objective of the Government in enhancing Hong Kong’s status as a leading center for international legal and dispute resolution services in the Asia-Pacific region. The Joint Dispute Resolution Strategy Office, set up in September 2016, is responsible for the overall coordination of mediation and arbitration work and acts as a single point of contact on all matters relating to the promotion of dispute resolution.
5. The Law Drafting Division , in Chinese and English, all legislation proposed by the Government and provides professional support to policy bureaux throughout the legislative process. It is also responsible for updating and publishing the consolidated legislation of the HKSAR.
6. The International Law Division advises the Government on issues relating to public international law. Lawyers in this division also participate in the negotiation of agreements with other jurisdictions and handle requests to and from the HKSAR for international legal co-operation.
7. Administration and Development Division
The Administration & Development Division provides essential support for the effective functioning of the Department. The support covers areas including human resources, financial management, training, library services and information technology (IT). This is provided by a team of administrative staff including managers, accounting and translation officers, library staff, IT personnel, secretaries, clerical officers and other support staff.