LLAW1008

THE LEGAL SYSTEM

OF THE
HONG KONG SAR
2022-2023

DR. ERIC C. IP
HKU LAW

INTRODUCTION

1
 THE NATURE OF HUMAN LAW

ORIGINS FUNCTION

Developed by individuals and Addressed to members of that

institutions who discharge community for purposes of regulating
responsibilities to serve the common their conduct.
good of a community.

J Finnis, 'The Nature of Law' in J Tasioulas (ed), The Cambridge Companion to

the Philosophy of Law (Cambridge University Press, 2020) 38, 57; J Rawls, A
Theory of Justice (Harvard University Press, 1999) 207.

THE TWO PURPOSES OF LAW

TO CLARIFY HUMAN
TO PRESCRIBE HUMAN CONDUCT RELATIONSHIPS
'[T]o require, forbid or penalise forms of '[T]o provide formal rules for classes of
conduct between citizen and citizen, and human activity whose fulfilment would
citizen and state.' otherwise be confused, uncertain or
ineffective.'
Examples: 'Every provision for a remedy,
criminal and civil' like tort law and Examples: '[A]ll prescribed formalities and
criminal law. rules of procedure' like company law and
constitutional law.

J Laws, The Common Law Constitution

(Cambridge University Press, 2014) xiii.

2
 COMPONENTS OF
A LEGAL SYSTEM

A SET OF PERSONS, INSTITUTIONS

A SET OF LEGAL PRINCIPLES AND PRACTICE TO PUT LEGAL
AND RULES PRINCIPLES AND RULES INTO
ACTION.

J Finnis, 'The Nature of Law' in J Tasioulas (ed), The Cambridge

Companion to the Philosophy of Law (Cambridge University Press, 2020)
38, 42.

Topic Week*

1. Comparative Legal Traditions (Dr. Eric C. Ip) 7 September 2022

2. History of Hong Kong Law, 1841-1997 (Dr. Eric C. Ip) 14 September 2022
3. Sources of Law (Dr. Eric C. Ip) 21 September 2022
4. The Judiciary (Dr. Eric C. Ip) 28 September 2022
5. Common Law Reasoning and Statutory Interpretation (Dr. Eric C. Ip) 5 October 2022
Reading Week (no lecture; no tutorial unless otherwise assigned by tutors)
6. Civil Justice (Ms. SK Lee) 19 October 2022
7. Criminal Justice (Ms. SK Lee) 26 October 2022
8. Rule of Law Principles of the Common Law Tradition (Ms. SK Lee) 2 November 2022
9. The Legal Profession and Professional Ethics in Hong Kong (Ms. SK Lee) 9 November 2022
10. The Legislative Process (Ms. SK Lee) 16 November 2022

There will be a total of 5 tutorials, conducted in double-sessions (1 hr 50 mins) on a bi-weekly basis and covering the topics
of 2 lectures each. Tutorial classes will begin in the weeks of 14 and 21 September 2022 respectively. There will be no lecture
in the Reading Week and no tutorial unless otherwise assigned by relevant tutors. For details, please refer to tutorial
timetable in a separate document.

3
Why Study Legal System?

• It lays a sound knowledge foundation for all of your

coming legal courses.

• Legal System has been made compulsory in JD and

LLB programmes offered by all Hong Kong law
schools.

• Local and overseas PCLL applicants must

demonstrate competence in 'Hong Kong Legal
System.'
(http://www.pcea.com.hk/newrequirement.pdf).

TOPIC 1
HONG KONG LAW
IN COMPARATIVE
PERSPECTIVE

4
 COMPARATIVE LEGAL
TRADITIONS

THE THE THE

CIVILIAN COMMON SOCIALIST
LAW LAW LAW
TRADITION TRADITION TRADITION

COMPARATIVE
LEGAL
TRADITIONS
THE CIVILIAN
LAW TRADITION

5
 THE CIVILIAN LAW TRADITION

DISSEMINATED THE
MAINLY PREEMINENCE
ROMAN EMPIRE THROUGH OF CODES AND
ROOTS FRENCH AND THE
GERMAN INQUISITORIAL
INFLUENCE MODEL

The ancient Roman imperial legal tradition of

jus civile originally developed during the
Roman republic (753–31 BC), and applied
exclusively to Roman citizens.

• Medieval European jurists rediscovered the Corpus

Juris Civilis commissioned in the sixth century by
the Eastern Roman Emperor Justinian the Great (r.
527-565).

• Early modern European rulers took advantage of

the Roman legal maxims that the ruler is legibus
solutus (absolved from the laws), and that quod
principi placuit legis habet vigorem (what pleases
the prince has the force of law).

• Their refinement of Roman law culminated in the

magisterial codification of the Napoleonic Code of
1804.

6
Like the common law tradition, the
civilian law tradition spread mainly
through imperialism and colonial
expansion:

• France disseminated her legal influence to the Near

East, Northern and Sub-Saharan Africa, Indochina,
Oceania, and the French Caribbean Islands.

• The German Empire enacted the German

Commercial Code in 1897, and radiated its legal
influence to Austria, Czechoslovakia, Greece,
Hungary, Italy, Switzerland, Yugoslavia and certain
constituent states of the former USSR.

Stereotype of judges in the civilian law

tradition:

• 'In the past, the great names of the civil law were
not those of judges (who knows the name of a civil
law judge?) but those of legislators (Justinian,
Napoleon) and scholars (Gaius, Savigny). Civil law
judges are not culture heroes or parental figures …
Their image is that of a civil servant who performs
important but essentially uncreative functions.'

• John Henry Merryman and Rogelio Perez-Perdomo,

The Civil Law Tradition: An Introduction to the
Legal Systems of Europe and Latin America, 4th
edition (Stanford University Press, 2019) 36

7
Principal features of an inquisitorial model of
litigation:

• 'The judge is responsible for the gathering of

evidence … The judge will direct lines of inquiry to
be followed and witnesses to be interviewed.'
• 'If someone wants to present a particular set of
evidence to the court or to pursue a particular line
of inquiry, he or she may be prevented from doing
so if the judge does not think it helpful.'
• 'The judge is an active participant in the preparation
for trials.'
• 'The judge then, during the trial, may determine
that further information will be required to resolve
the dispute.'
• Jonathan Herring, Legal Ethics, 2nd edn (Oxford University Press, 2017)
270.

COMPARATIVE
LEGAL
TRADITIONS
THE COMMON
LAW TRADITION

8
The common law tradition, with roots in
Anglo-Saxon England (5-11 centuries),
developed mainly after the Norman Conquest
of 1066. It is one of the two major legal
traditions in the world, governing one-third
of the world's population. Typical features
include:

• Doctrine of precedent
• Use of juries
• Importance of oral proceedings
• Absence of comprehensive codification
• Blurred distinctions between public and private
law
• Adversarial model of litigation
• Respect accorded to senior judges

Three fundamental principles of the common

law:
• Reason
• Fairness
• Presumption of Liberty
John Laws, The Constitutional Balance (Hart Publishing, 2021) 66.

Four characteristics of the common law

tradition:
• Evolution – rules of the common law are not static.
• Experiment – trial-and-error and self-correcting
process.
• History – emphasis on continuity with the past
under the doctrine of precedent.
• Distillation – the modification and adjustment of
the common law to meet new conditions.
• John Laws, The Common Law Constitution (Cambridge University
Press, 2014) 7.

9
The term 'common law' is often used in a
narrower sense to denote case law (defined as
rules of the common law + equity) as opposed
to legislation.

Sir William Blackstone, Commentaries on the

Laws of England (1765):

• '[T]he [common] law, and the opinion of the judge,

are not always convertible terms, or one and the
same thing; since it sometimes may happen that the
judge may mistake the law.' Rather, 'the decisions of
courts of justice' are not the common law itself but,
more accurately, 'the evidence of what is common
law.'

In Re Simpson QC [2019] 5 HKLRD 441, 450,

the Court of First Instance (Poon ACJHC):

• 'In our adversarial system, our courts rely on the

Bar's independence in presenting the case and
advancing arguments with impartiality and
honesty, and with force and vigour. Our judges act
in the confidence that when barristers press a point,
especially a difficult or novel one, they are guided
by the best tradition of the Bar to act professionally,
fairly and impartially; and that while fighting for
their clients' best interests, they would not sacrifice
their professionalism and impartiality. It enables
the courts to arrive at a decision on facts or
ascertain the applicable legal principles or even
develop the law with the best assistance from
counsel offered impartially without fear, favour,
prejudice or bias. This is crucial to the court's
process of developing the common law.'

10
 COMPARATIVE
LEGAL
TRADITIONS
THE SOCIALIST
LAW TRADITION

Principles of Marxist-Leninist Law:

• Law is above all 'the expression of the will of the

classes which had won the victory and kept the
governmental power in their hands' and the judicial
system 'an organ of the dictatorship of the
proletariat exercised by the communist party.'

• Law should play an instrumental role in building a

strong, proletariat dictatorship that could help the
Communist Party serve a 'vanguard' role in building
a new society.

• Leninism's insistence on political unity meant that

it must reject the kind of separation of powers
practiced in Western systems.
• Gsovski, Vladmir, 'The Soviet Concept of Law,' 7 Fordham Law
Review 1 (1938).

11
• 'Marxism regards … that the individual personality
can and should only realize itself by being a member
of and expressing the interests of the collective.'
• 'The idea that human rights are sacred and
inviolable and that law should be used to protect
and enforce these rights are therefore … absent in
Marxist orthodoxy.'
• Chairman Mao: 'Such state apparatus as … the
police and the courts are instruments with which
one class oppresses another. As far as the hostile
classes are concerned these are instruments of
oppression. They are violent and certainly not
'benevolent' things.'
• Albert H.Y. Chen, 'Civil Liberties in China: Some Preliminary
Observations,' in Raymond Wacks (ed), Civil Liberties in Hong
Kong (Hong Kong: Oxford University Press, 1988) 113-114.

The Constitution of the People's Republic of

China (last amended in 2018), Preamble:

• 'We the Chinese people of all ethnic groups will

continue, under the leadership of the Communist
Party of China and the guidance of Marxism-
Leninism, Mao Zedong Thought, Deng Xiaoping
Theory, the Theory of Three Represents, the
Scientific Outlook on Development and Xi Jinping
Thought on Socialism with Chinese Characteristics
for a New Era, to uphold the people's democratic
dictatorship, stay on the socialist road, carry out
reform and opening up, steadily improve the
socialist institutions, develop the socialist market
economy and socialist democracy, improve
socialist rule of law, apply the new development
philosophy …'

12
The Constitution of the People's Republic of
China, art.1:

• 'The People's Republic of China is a socialist state

governed by a people's democratic dictatorship that is
led by the working class and based on an alliance of
workers and peasants.

• The socialist system is the fundamental system of the

People's Republic of China. Leadership by the
Communist Party of China is the defining feature of
socialism with Chinese characteristics. It is prohibited
for any organization or individual to damage the
socialist system' .

The Constitution, art.6:

• 'The foundation of the socialist economic system of
the People's Republic of China is socialist public
ownership of the means of production, that is,
ownership by the whole people and collective
ownership by the working people. The system of
socialist public ownership has eradicated the
system of exploitation of man by man, and
practices the principle of “from each according to
his ability, to each according to his work.”'

The Constitution, art.24(2):

• 'The state shall champion core socialist values;
advocate the civic virtues of love for the
motherland, for the people, for work, for science
and for socialism; educate the people in patriotism
and collectivism, in internationalism and
communism, and in dialectical and historical
materialism; and combat capitalist, feudal and
other forms of decadent thought.'

13
Important legal achievements:

• 'Law was increasingly seen as an instrument for

achieving justice, fairness and equality, not merely
for creating and maintaining social stability
conducive to economic development. Thus, the
protection of human rights and private property
was formally incorporated into the State
Constitution, and many procedural safeguards and
some limited form of checks and balances were
established by procedural and administrative
laws ...'
• Jianfu Chen, 'Chinese Law and Legal Reform: Where to From
Here?,' 50(1) HKLJ 243, 247-248 (2020).

The Constitution, art.5:

• 'The People's Republic of China shall practice law-

based governance and build a socialist state under the
rule of law.
• The state shall safeguard the unity and sanctity of the
socialist legal system.
• No law, administrative regulation or local regulation
shall be in conflict with the Constitution.
• All state organs and armed forces, all political parties
and social organizations, and all enterprises and public
institutions must abide by the Constitution and the law.
Accountability must be enforced for all acts that
violate the Constitution or laws.
• No organization or individual shall have any privilege
beyond the Constitution or the law' .

14
 COMPARATIVE
LEGAL
TRADITIONS
CONVERGENCES

Civilian law, common law, and socialist law

must not be understood rigidly:
• Common law and civilian law share a lot of
ideological commonalities, eg capitalism and
individualism; widespread existence of Roman
law-inspired Latin legal terms in the common law.
• Civilian law countries do not necessarily ignore
judicial precedents or even custom, and some
courts in civilian law countries are very powerful,
eg the German Federal Constitutional Court.
• Common law jurisdictions increasingly resort to
the use of legislation/statutes to codify policies.
• Some socialist law countries take the right to
private property and court decisions (e.g. guiding
cases) much more seriously than before.
• There are vast differences within each legal
tradition.

15
 Comparison of the Civilian Law, Common Law,
and Socialist Legal Traditions
Civilian Law Common Law Socialist Law

Pre–eminence of binding case law No Yes No

Pre–eminence of adversarial litigation No Yes No

Recognition judiciary No Yes No

Equity is a source of law in its own right No Yes No

Justiciability of constitutional rights in the courts Yes Yes No

Pre–eminence of law codes Yes No Yes

Pre–eminence of inquisitorial litigation Yes No Yes

Career judiciary Yes No Yes

Principle of democratic centralism No No Yes

National parliament vested with final power ofNo No Yes

constitutional and statutory interpretation

Source: Eric C. Ip, Law and Justice in Hong Kong (4th edn)
(Sweet & Maxwell, 2022), Ch.1.

HONG KONG LAW

IN COMPARATIVE
PERSPECTIVE
HONG KONG
AS A COMMON
LAW
JURISDICTION

16
Hong Kong as a Common Law Jurisdiction:

• The only common law jurisdiction in East Asia.

• Arguably the oldest continuously functioning legal

system in East Asia.

• The only common law jurisdiction that has been

absorbed into a non-common law sovereign law
state.

• The only common law jurisdiction in which the

Chinese language has been used to develop the
common law.

17
Reference to International and Comparative
Law in the Hong Kong Basic Law:

• The Basic Law, art.84: 'The courts of the [HKSAR]

shall adjudicate cases in accordance with the laws
applicable in the Region as prescribed in Article 18
of this Law and may refer to precedents of other
common law jurisdictions.'

• The Basic Law, art.39(1): 'The provisions of the

International Covenant on Civil and Political Rights,
the International Covenant on Economic, Social and
Cultural Rights, and international labour
conventions as applied to Hong Kong shall remain
in force and shall be implemented through the laws
of the Hong Kong Special Administrative Region.'

Solicitor v Law Society (2008) 11 HKCFAR 117,

133, the Court of Final Appeal (Li CJ):
• 'After 1 July 1997, in the new constitutional order, it
is of the greatest importance that the courts in Hong
Kong should continue to derive assistance from
overseas jurisprudence … It is of great benefit to the
Hong Kong courts to examine comparative
jurisprudence in seeking the appropriate solution
for the problems which come before them. This is
underlined in the Basic Law itself. Article 84
expressly provides that the courts in Hong Kong
may refer to precedents of other common law
jurisdictions.'

18
Shum Kwok Sher v HKSAR (2002) 5 HKCFAR
381, 401, the Court of Final Appeal (Sir
Anthony Mason NPJ):

• '[T]he Court may consider it appropriate to take

account of the established principles of
international jurisprudence as well as the decisions
of international and national courts and tribunals
on like or substantially similar provisions in the
ICCPR, other international instruments and
national constitutions.'

Former Chief Justice Geoffrey Ma (2019):

• 'It has often been said that a constant theme of the

case law of the ECtHR has been the respect for
human rights together with the recognition that
there may be broader community interests that
should be considered. This was succinctly put in
Soering v United Kingdom (1989) 11 EHRR 439, at
para. 89. 'Furthermore, inherent in the whole of the
Convention is a search for a fair balance between
the demands of the general interest of the
community and the requirements of the protection
of the individual's fundamental rights.'

19
• 'The Hong Kong courts have had to learn quickly
and more than that, to have in place operative and
just principles of law in the area of fundamental
rights and freedoms to maintain the essence of
human dignity.'

• 'The Endless Search for the Right Answer: European Legal

Principles as Applied in Hong Kong,' Speech by The Honourable
Chief Justice Geoffrey Ma at the Inaugural Caius Mok Law
Lecture Gonville and Caius College, University of Cambridge 25
April 2019.

Mr. Justice Joseph Fok of the Court of Final

Appeal (2019):

• '[T]here is a strategic advantage in referring to

authorities in other jurisdictions since external
impressions of Hong Kong judicial decision-making
may be important for its reputation and standing in
the international commercial world.'

• The Hon. Mr Justice Joseph Fok, PJ, 'Global Justice and

Globetrotting Judges: Judges from other common law
jurisdiction in the Hong Kong Court of Final Appeal,' IBA Annual
Conference Seoul 2019 (24 September 2019).

20
Former Judge of the Court of Final Appeal
Henry Litton (2020):

• 'How did it come about that Beijing has developed

such mistrust of the Hong Kong judiciary? The
answer lies partly in a number of recent cases
directly affecting the relationship between the
central government and Hong Kong ... Most
concern interpretation of the Basic Law by the Hong
Kong courts. They have, at the highest level, put a
slant on its plain words, by applying obscure norms
and values from overseas which are totally unsuited
to Hong Kong's circumstances. Such an approach is
fundamentally wrong and is opposed to basic
common law principles.'
• Henry Litton, 'For Hong Kong's Sake, The Judiciary Must Regain
Beijing's Trust,' South China Morning Post (3 September 2020).

Farewell Sitting for the Honourable Mr

Justice Geoffrey Ma CJ (2021) 24 HKCFAR 1,
1–2 (Lord Neuberger NPJ):

• '[T]he [Court of Final Appeal] has given a large

number of legally and socially important and
impressive judgments, many of which have been
cited by numerous judges in a host of countries,
including the United Kingdom, Australia, Canada,
New Zealand and Singapore.'

21
The 'common law in force in Hong Kong': s.3,
Interpretation and General Clauses
Ordinance (Cap.1), is similar but not identical
with the common law of England.

China Field Ltd v Appeal Tribunal (Buildings)

(No 2) (2009) 12 HKCFAR 342, 351-352, the
Court of Final Appeal (Bokhary PJ):

• '[T]he Hong Kong courts were empowered and

required to apply English common law except
where the same was “inapplicable to the local
circumstances of [Hong Kong] or of its inhabitants”.
One of the things which that exception did was to
leave some room in certain spheres for ethnic
Chinese domiciled in Hong Kong to resort to the
laws and customs of traditional China, and some
such room remains to the present day.'

Hong Kong's legal system is interesting

from a comparative perspective.
• It little resembles those of other global cities in the
common law world.
• There is no such thing as a City of London legal
system or New York City legal system comparable
to Hong Kong's.
• Hong Kong is a geographically diverse jurisdiction
(an international financial centre co-existing with
rural and fishing villages).

22
• Unlike Singapore, which is its own sovereign,
sovereignty over Hong Kong is vested in the
People's Republic of China: art.1, Basic Law.
• Similar to Singapore, but unlike mainland Chinese
entities such as Beijing, Shanghai or Guangdong,
Hong Kong is:
• Vested with the power of final adjudication: art.2,
Basic Law.
• A separate customs territory: art.116, Basic Law.
• Able to conclude binding agreements with
foreign states in many areas (but fewer than
Singapore's): art.151, Basic Law.
• Additionally, Hong Kong is exempt from the vast
majority of national laws of China: art.18(2),
Basic Law.

HONG KONG LAW

IN COMPARATIVE
PERSPECTIVE
CLASSIFYING
LAW

23
 Domestic Law

International Law
Domestic Law International Law

Substantive Law

Substantive Law Procedural Law Procedural Law

(Civil Procedure and Criminal Procedure)
(Civil Procedure and Criminal
Procedure)

Civil Law

Civil Law Criminal Law

Criminal Law

Private Law Private Law Public Law

Public Law

Domestic/municipal law = law that applies within

the territorial boundaries of a sovereign state.

International law = law that governs the relations

between sovereign states (e.g., treaties, customary
international law, etc.).

Classify the following laws:

• UN Charter
• Sino-British Joint Declaration 1984
• Basic Law of the Hong Kong SAR
• Criminal Law of the People's Republic of China

24
 Civil Law Criminal Law

Disputes between persons Offences committed by persons

Action taken by the plaintiff (a Action taken by the Region/State

plaintiff sues a defendant) (the Department of Justice
prosecutes a defendant)
The plaintiff must prove his/her The prosecutor must prove beyond
case on a balance of probabilities reasonable doubt that the
defendant is guilty
Provide a remedy for a civil wrong, Determine the guilty of the
such as court orders that the losing individual.
party pay damages to the other Punishments such as
party, or carry out the contract as imprisonment or fines may be
previously agreed. imposed on conviction.
Adapted from Lucy Jones, Introduction to Business Law (3rd edn., OUP 2015) 12-13.

Public law deals with (1) the relations between

citizens and public authorities; and (2) the relations
between public authorities.

Private law deals with (1) the relations between

private legal persons; and (2) regulates private
interests.

Classify the following laws:

• Contract law
• Constitutional law
• Criminal law
• Evidence Law
• Family law
• Property law
• Tax law

25
END OF TOPIC 1

26