Hong Kong is a special administrative region of China and the legal system is based on the rule of law and independence of the judiciary. Below, we expand on and discuss what it means for Hong Kong to be a “Special Administrative Region” in terms of its legal system:
Hong Kong, the Special Administrative Region of the People’s Republic of China
A Brief History
A Collection of Small, Nameless Islands (Before 1841)
Hong Kong, as we now know it, was once a collection of small islands among a couple hundred islands of Canton (Guandong) Province. At that time, Hong Kong was merely inhabited by a few thousand fishermen, farmers, and stonecutters. Hong Kong was under the administration of the Qing dynasty in China by the Great Qing Legal Code.
British Hong Kong (1841 – 1997)
During the First Opium War (1839 – 1842), the collection of small, nameless islands, which we know as Hong Kong today, was used by the British as a naval outpost. In 1841, modern Hong Kong was founded by the British. By the Treaty of Nanking (1842) between Qing China and the United Kingdom, the territory of Hong Kong was officially ceded to the British Crown. Soon thereafter, Hong Kong became a Crown Colony. Consequently, the English common law tradition was extended to Hong Kong and formed the foundation of British Hong Kong’s constitution. During British rule, the laws of England were in full force in Hong Kong, except where certain laws were inapplicable to the local circumstances or had been subsequently modified by laws passed by the legislature.
Hong Kong, the Special Administrative Region of the People’s Republic of China (1997 – Present)
By the Sino-British Joint Declaration (1984) between the United Kingdom (“UK”) and the People’s Republic of China (“PRC”), Hong Kong was to be governed under Chinese sovereignty after 1 July 1997. Thus, after the handover on 1 July 1997, Hong Kong was returned to China and became the Hong Kong Special Administrative Region of the People’s Republic of China (“HKSAR”). With the exception of a few changes, the institutions and laws in place in British Hong Kong remain largely unchanged and continue to operate in the HKSAR, post-handover. The constitutional framework of “one country, two systems” entails that Hong Kong, as a Special Administrative Region, while part of the PRC, is nevertheless separate from China’s largely civil law system in Mainland China. Instead, the HKSAR continues to follow a common law system to this day.
A Common Law Jurisdiction
Ever since the British colonization of Hong Kong in 1841, Hong Kong has been following the common law system. The common law system, along with the civil law system, is one of the two major legal systems in the world. Other common law jurisdictions in the world include, but are not limited to, England and Wales, Canada (except Québec), Australia, New Zealand, South Africa, the United States (except Louisiana state), etc. Arguably, the most distinguishing feature of the common law system in Hong Kong, as in other common law jurisdictions, is its reliance on the doctrine of precedent as a major source of law.
Sources of Law
Case Law
Simply put, case law comprises of the unwritten laws of Hong Kong relating to cases heard before the court.
Common-Law Rules
Common-Law Rules derive from reason operating upon custom. As a body of unwritten laws, its content is formulated and shaped by the reasoning and decisions of judges in preceding cases with similar fact patterns to the present case before the court. This is called the doctrine of precedent, obliging judges in future cases to follow previous judicial decisions in their reasoning to reach their decision. In general, the decisions of higher courts bind all lower courts. The Hong Kong courts are not restricted to only applying and following precedent from Hong Kong only, but may also refer to judicial decisions from other common law jurisdictions.
Rules of Equity
Rules of Equity originate from the conscience and sense of justice of the King as represented by the Lord Chancellor. They uphold fairness, though do not exist as an independent body of rules. Rather, they merely fill in the gaps of the Common Law, especially where Common Law precedent may be too harsh or rigid. The Rules of Equity are also discretionary in nature. This means that it is left to the judge(s) to decide whether or not to employ them.
For example, the court does not have to grant an equitable remedy where they deem that the behaviour of the party seeking the equitable award is undeserving. Examples of equitable remedies include:
- Injunction (the court orders a party to stop doing something)
- Specific performance (the court orders a contractual party to perform his/her part of the contract)
As per the High Court Ordinance (Cap. 4), where there is any conflict between the Rules of Equity and Common Law Rules, the Rules of Equity prevail.
Legislation
Simply put, legislation comprises of the written laws of Hong Kong.
Basic Law
The Basic Law was made in accordance with the PRC Constitution and essentially acts as a constitutional document of the HKSAR. The purpose of the Basic Law was to ensure a smooth transition post-handover by guaranteeing continuity of various systems in the HKSAR. It sets out the systems (including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relative policies) to be practised in the HKSAR, distinct from the systems widely practised in the PRC, i.e. in Mainland China. These systems exist to implement the basic policies of the PRC regarding the HKSAR. Its basic policies echo the Sino-British Joint Declaration (1984), thereby upholding the constitutional principle of “one country, two systems”, “Hong Kong people administering Hong Kong” and a high degree of autonomy.
Legislative subjects under the Basic Law include:
- External affairs;
- Public security;
- Civil rights;
- Political structures;
- Public finance;
- Monetary affairs;
- Trade, industry and commerce;
- Education;
- Science, culture and sports; and
- Religion, labour and social services.
While the Basic Law is guaranteed by the PRC to remain in force for at least 50 years post-1997, that is only a minimum duration and not an expiry date.
Standing Committee of the National People’s Congress’s Interpretations of the Basic Law
The power of interpretation of the Basic Law is vested in the Standing Committee of the National People’s Congress (“NPCSC”). The NPCSC is mostly in charge of interpreting provisions of the Basic Law relating to affairs which are the responsibility of the Central People’s Government or the relationship between the Central Authorities and the HKSAR. Such interpretations of the Basic Law by the NPCSC are prospectively binding; in other words, henceforth, the HKSAR courts must follow the NPCSC interpretations of the Basic Law in adjudicating cases.
Domesticated Annex III National Laws
National laws applied in Mainland China are generally not applicable to Hong Kong except for those listed in Annex III to the Basic Law. These laws are confined to defence and foreign affairs in addition to other matters outside the limits of the autonomy of the HKSAR (according to the Basic Law) and include:
- Resolution on the Capital, Calendar, National Anthem and National Flag of the PRC
- Resolution on the National Day of the PRC
- Order on the National Emblem of the PRC Proclaimed by the Central People’s Government
- Declaration of the Government of the PRC on the Territorial Sea
- Nationality Law of the PRC
- Regulations of the PRC Concerning Diplomatic Privileges and Immunities
The CFA Approach
The Court of Final Appeal’s (CFA) approach to interpreting the Basic Law is as follows:
- The Basic Law is a living tree / living instrument and it should be interpreted flexibly keeping in mind the needs of society.
- Apply the purposive interpretation i.e.
- consider the purpose of both (a) Basic Law generally and (b) constitutional provision at issue in the case before the Court specifically
- interpret the provision at issue in a way that best meets societal needs given these purposes
- if provision at issue is a fundamental right (Chapter III of BL), it should be interpreted generously and any restrictions/limits on it should be interpreted narrowly
- once meaning of provision has been properly determined, then ordinances must be read in a way to be consistent with that meaning or deemed invalid if they cannot be read in such a way
In addition, the Law of the PRC on Safeguarding National Security in the HKSAR (“HKSAR National Security Law”) was appended to the list of national laws in Annex III to the Basic Law on 30 June 2020. In summary, it sets out provisions to prevent and suppress the subversion, terrorism, separatism and collusion with foreign forces so as to safeguard national security and maintain prosperity and stability in the HKSAR.
The aforementioned laws listed in Annex III may be implemented locally in Hong Kong by means of one of two mechanisms:
- Promulgation – the PRC law is applied without amendment, through a legal notice issued by the Chief Executive in the Gazette. E.g. PRC Law on the Exclusive Economic Zone and the Continental Shelf.
- Local legislation – the PRC law is implemented with modifications, through the Legislative Council of Hong Kong. E.g. National Flag and the National Emblem Ordinance (Instrument A401).
Ordinances (i.e. primary legislation)
Ordinances refer to the codified (i.e. written) laws enacted by the Legislative Council of Hong Kong; these introduce new legal rules. It may be helpful for you to know that an “Ordinance” in Hong Kong is essentially the equivalent of an “Act” in other common law jurisdictions. Ordinances may be Principal Ordinances or Amendment Ordinances (i.e. amending or repealing any part of the concerned Principal Ordinance).
Ordinances override older Ordinances, subsidiary legislation, case law, and Chinese customary law. However, the Basic Law supersedes any Ordinances to the contrary.
Ordinances cover a wide variety of areas in society. The following is a list of some of the roles they play in addition to examples of Ordinances in Hong Kong:
- Declare underlying legal rules
e.g. Legislative Council (Powers and Privileges) Ordinance (Cap. 382)
- Consolidate existing Ordinances
e.g. Crimes Ordinance (Cap. 200) (combined the provisions of various different prior penal ordinances)
- Codify or restate existing case law principles
e.g. Sale of Goods Ordinance (Cap. 26) (codified the case law relating to the sale of goods)
- Sanction the community’s moral or cultural values
e.g. Dogs and Cats Ordinance (Cap. 167)
- Collect revenue
e.g. Inland Revenue Ordinance (Cap. 112)
- Introduce social and economic policies
e.g. Air Pollution Ordinance (Cap. 311), Competition Ordinance (Cap. 619)
- Promote dispute resolution
e.g. Apology Ordinance (Cap. 631)
- Promote changes in social and economic attitudes
e.g. Sex Discrimination Ordinance (Cap. 480), Family Status Discrimination Ordinance (Cap. 527), and Disability Discrimination Ordinance (Cap. 487)
- Give effect to international treaties
e.g. Child Abduction and Custody Ordinance (Cap. 512) (enacted the Hague Convention on the Civil Aspects of International Child Abduction)
- Give effect to Annex III National Laws and NPCSC Interpretations of the Basic Law (as mentioned earlier)
e.g. Shenzhen Bay Port Hong Kong Port Area Ordinance (Cap. 591)
- Give effect to Arrangements made with the Mainland China government (i.e. inter-jurisdictional agreements between PRC and HKSAR)
e.g. Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597)
Subsidiary/subordinate legislation (i.e. secondary legislation)
Subsidiary legislation is essentially any proclamation, rule, regulation, order, resolution notice, rule of court, by-law or other instrument made under or by virtue of any Ordinance and it has legislative effect. It may be helpful for you to know that “subsidiary legislation” in Hong Kong is essentially the equivalent of a “statutory instrument” or “delegated legislation” in the UK. Generally, each piece of subsidiary legislation is assigned to its enabling Ordinance and is made with the intent to execute the existing enabling Ordinance rather than to introduce new legal rules.
For example, The Rules of the High Court (Cap. 4A) is a subsidiary legislation to the High Court Ordinance (Cap. 4).
In contrast to Ordinances which can only be enacted by the Legislative Council of Hong Kong, there are many different makers of subsidiary legislation:
- The HKSAR Government
e.g. the Basic Law empowers the Chief Executive in Council and the Government to make subsidiary legislation
- Courts
e.g. the Rules Committee of the High Court made The Rules of the High Court (Cap. 4A) subsidiary legislation, pursuant to the High Court Ordinance (Cap. 4)
- Regulatory and statutory authorities
e.g. the Securities and Futures Commission made the Securities and Futures (Unsolicited Calls—Exclusion) Rules (Cap. 571A), pursuant to the Securities and Futures Ordinance (Cap. 571)
- Private companies
e.g. the Peak Tramways Co. Ltd. made the Peak Tramway By-laws (Cap. 265B), pursuant to the Peak Tramway Ordinance (Cap. 265)
- Public corporations
e.g. the Mass Transit Railway Corporation made the Mass Transit Railway By-laws (Cap. 556B), pursuant to the Mass Transit Railway Ordinance (Cap. 556)
- Professional bodies
e.g. the Hong Kong Institute of Certified Public Accountants made the Professional Accountants By-laws (Cap. 50A), pursuant to the Professional Accountants Ordinance (Cap. 50)
Customary Law
Traditional Chinese customary law
Traditional Chinese customary law in Hong Kong comprises of the Qing Code and custom in Hong Kong in 1843, with variations by local developments. As per the Basic Law, and consequently, the New Territories Ordinance (Cap. 97), the law and customs of the indigenous inhabitants of the New Territories are to be protected in Hong Kong.
Often, like Case Law, Customary Law is unwritten. Its content is largely formulated by witnesses who are experts in Chinese law and custom (i.e. university professors and legal practitioners) in addition to Case Law authorities.
Secondary Legal Authorities
Secondary Legal Authorities comprise of scholaristic legal publications that explains the law of Hong Kong, i.e. the primary authority. They are the least authoritative and, consequently, the least used in practice in Hong Kong. When used, it is for helping to clarify and gain insight into difficult cases by considering academic comment and arguments on the issue.
Examples of Secondary Legal Authorities include, but are not limited to:
- Classics of antiquity
e.g. Commentaries on the Laws of England (1765) by William Blackstone
- Treatises (formal and systematic written work about a particular legal subject)
e.g. Chitty on Contracts by Hugh Beale
- Textbooks
e.g. Tort Law in Hong Kong (2012) by R. Glofcheski
- Peer-reviewed articles / non-peer-reviewed articles
e.g. Hong Kong Law Journal
- Professional journals
e.g. Hong Kong Lawyer
- Encyclopedias
e.g. Halsbury’s Laws of Hong Kong
- Dictionaries
e.g. Hong Kong English-Chinese Legal Dictionary
Enforcement of Law
Hong Kong, as with other governments in the world, has three main bodies which act together to enforce the aforementioned Sources of Law in society. Each of the three branches of government are vested with different powers by the Basic Law which, altogether, allows them to enforce the law in Hong Kong.
The Legislature
In Hong Kong, the Legislature is the Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic of China (“LegCo”). In other jurisdictions, this may be referred to as “Parliament” or “Congress”.
The main powers and functions of the LegCo include:
- To enact, amend or repeal laws
- To examine and approve budgets, taxation and public expenditure
- To raise questions on the work of the government
- To receive, handle, and debate on any complaints and issues concerning public interests
- To endorse the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge to the High Court
- To pass a motion of impeachment against the Chief Executive and report it to the CPG for decision
The Executive
In Hong Kong, the Executive is the HKSAR Government, headed by the Chief Executive of Hong Kong.
The main powers and functions of the HKSAR Government:
- To formulate and implement policies
- To conduct administrative affairs and external affairs (as authorized by the CPG)
- To formulate and introduce budgets and final accounts
- To draft and introduce bills, motions and subordinate legislation
- To designate officials to sit and speak on behalf of the HKSAR government in the LegCo meetings
The Judiciary
In Hong Kong, the Judiciary is the HKSAR Judiciary, comprising of various bodies at many different levels:
- The Court of Final Appeal
- The High Court (Court of Appeal & Court of First Instance)
- District Courts
- Magistrates’ Courts
- Other Special Courts
The HKSAR Judiciary exercises independent judicial power in Hong Kong. This, therefore, empowers the HKSAR Judiciary, free from interference, to adjudicate cases of both criminal cases and civil legal disputes through interpretation and application of the relevant law(s). The decision and outcomes of the judges in each case by the Judiciary are legally binding on the parties in the case.
The power of final adjudication in Hong Kong is vested in the Court of Final Appeal which also invites judges from other common law jurisdictions to sit on it. As mentioned earlier, in adjudicating cases, the courts may refer to precedents of other common law jurisdictions.
In order for everyday people like you to enforce the law and protect your rights, there is a robust system of Legal Services in Hong Kong.
Legal Services
The Legal Profession
Following the UK, the Hong Kong legal profession is similarly divided into two main branches, namely Solicitor and Barrister.
The table below sets out the key information about and main differences between the two different types of lawyers in Hong Kong.
| Solicitors | Barristers | |
| Work | Solicitors deal with office/paperwork; they offer legal advice and prepare legal documents, e.g. in contracts, conveyancing wills, intellectual property, finance, etc. | Barristers specialise in advocacy; they draft pleadings and give oral and written legal advice. |
| Client relationship | Solicitors have direct client contact, meaning that there is a contractual relationship between the Solicitor and his/her client. | Barristers have no direct client contact. They have a detached relationship with their client, meaning that there is no contractual relationship. Instead, barristers work for clients on instruction by solicitors. |
| Business organisation | Partnership (firm) or Limited Liability Partnership (“LLP”). | Self-employed sole proprietors whereby the barrister individually takes full responsibility for his work. OR Organisation of barristers into sets of chambers with shared rent and expenses. |
| Rights of audience (i.e. to represent and speak on behalf of their client in court) | Limited rights of audience in the lower courts (e.g. Magistrates’ Courts, District Courts, etc.), usually relating to procedural documentation matters only. | Full rights of the audience in all the courts. |
| Charge | Hourly rates. | Paid an “honorarium” by instructing solicitors: daily or hourly rates. |
These are separate professions which are independent from each other, meaning that a practicing legal professional cannot be both a solicitor and a barrister simultaneously. However, there is a narrow exception for Solicitor Advocates who are qualified as a solicitor but also, like a Barrister, has the right to appear in court and conduct proceedings on behalf of his/her client. Nevertheless, there are only around 78 of these in Hong Kong (as of the end of April 2021).
However, one big downside to the legal profession is that hiring their services can often be very costly and time-consuming.
Key takeaways:
- Hong Kong is officially the Hong Kong Special Administrative Region of the People’s Republic of China and is fundamentally a common law jurisdiction.
- The main sources of law in Hong Kong include Case Law, Legislation, Customary Law and Secondary Legal Authorities.
- You can access legal services through the legal profession (i.e. Solicitors and Barristers) where the law is enforced by the three limbs of government, namely the Legislature, the Executive and the Judiciary.
Bibliography:
- Department of Justice of the Government of the Hong Kong Special Administrative Region,“Our legal system”:
Please note that this is a general summary of the position under the Laws of Hong Kong SAR and does not constitute legal advice.