Lecture 1_Legal System in Hong Kong.pdf

Ethical & Legal Aspects in Health Care Class PDN21 School of Health Sciences Saint Francis University Lecture 1 The Legal System in Hong Kong Legal System in Hong Kong 1 Intended Learning Outcomes At the end...

Ethical & Legal Aspects in Health Care Class PDN21 School of Health Sciences Saint Francis University Lecture 1 The Legal System in Hong Kong Legal System in Hong Kong 1 Intended Learning Outcomes At the end of this lecture, students will be able to:  discuss the legal system in Hong Kong;  explain the functions of law;  compare different sources of laws;  classify different types of laws;  distinguish various aspects of the law of tort. Legal System in Hong Kong 2 Macro Functions of Law (1) Macro functions of Law  ‘Law is order, and good law is good order’ (Aristotle)  Public order Law is essential to maintaining peaceful public order.  e.g. the Basic Law  e.g. the Crimes Ordinance (Cap 200)  Political order This is usually done by a constitution (the ultimate law in a jurisdiction). Legal System in Hong Kong 3 Macro Functions of Law (2)  Social order  e.g. contract law ;  e.g. the Sale of Goods Ordinance (Cap 26)  Economic order In a market economy like Hong Kong, it is necessary for the law to provide consistent regulation of the market.  e.g. the Companies Ordinance (Cap 622)  e.g. the Securities and Futures ordinance (Cap 571)  Moral order anti-discrimination law in Hong Kong (SDO, DDO, FSDO, RDO):  e.g. the Disability Discrimination Ordinance (Cap 487)  e.g. the Family Status Discrimination Ordinance (Cap 527) Legal System in Hong Kong 4 Micro Functions of Law (1) Micro functions of Law  Law defines the limits of acceptable behaviour. e.g. contract law. The law has the responsibility of setting limits to prevent individuals from breaching (harming others), and consequently preventing harm to society.  Law prescribes punishment. e.g. insider trading rules – civil or criminal sanctions to punish the insiders who misused confidential inside information  Law defines the processes for business transactions and other activities. e.g. contract law; company law. Legal System in Hong Kong 5 Micro Functions of Law (2) Micro functions of Law E R ↳ ordinance  Law creates regulatory frameworks.. registration e.g. Basic Law governs which laws will apply in the Special Administrative Region.  Law prevents the abuse of official powers. e.g. Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) prescribes boundaries and consequences for the behaviour of officials and lawmakers in their official capacities. Legal System in Hong Kong 6 What is a ‘legal system’? (1)  a collection of laws  a system of government  comprises the ideologies (觀念、思想) and jurisprudence (法理學、法律體系) such as the ‘rule of law’ (法治) Legal System in Hong Kong 7 What is a ‘legal system’? (2) A legal system consists of  Laws: rules and principles  Institutions ·  Personnel Legal System in Hong Kong 8 Legal System in Hong Kong  Introduction  Sources of Laws  Types of Laws  Torts Legal System in Hong Kong 9 Introduction The reasons of studying ethics and law  Growing concerns with rights to health care  Understanding ethical dilemmas  advancing in medical technology  Expanding and extending roles of nurses  increasing expectations in nursing practice  Avoiding malpractice liability Legal System in Hong Kong 10 Nursing and Law Why do we study law in the nursing program? The Cores of Values and Ethics  Avoiding malpractice liability Legal System in Hong Kong 11 Laws vs Ethics (1) Why do we study law in the nursing program? The Cores of Values and Ethics  Values  Importance  Importance or usefulness  Value clarification and conflicts  Morals  Standards of right and wrong that one learns through socialization  Moral relativism  whatever a personLegal believes is right, is right for him or her System in Hong Kong 12 at that moment Laws vs Ethics (2)  Ethics  Systems of valued behaviours and beliefs that govern proper conduct and character to ensure the protection of an individual’s rights  Laws  Binding rules of conduct enforced by authority to prevent the actions of one party from infringing other’s rights Legal System in Hong Kong 13 Morality and Law  Moral or immoral;  Conscience ;  Obligation to obey law. Legal System in Hong Kong 14 Meaning of Law  those rules made by humans which regulate social conduct in a formally; prescribed and legally binding manner;  statues are derived from formal legislative enactment;  Common law is derived from court decisions. Legal System in Hong Kong 15 Ethical Decisions in Nursing Practice  Am I making the right decision?  Patient Care  administration versus professionalism  duties and responsibilities  standards of practice  Is there any guideline for solving all ethical conflicts? Legal System in Hong Kong 16 Ethical Dilemma 護理倫理決策困境  A situation that requires a choice between two equally unfavourable alternatives  Both ethical and legal  3 checks and 5 rights  Ethical but not legal  euthanasia  Legal but not ethical  follow doctor’s prescription  Neither legal nor ethical  wrong medication Legal System in Hong Kong 17 Ethical Dilemma (1)  Beneficence行善原則  What is good as opposed what is harmful?  Nonmaleficence不傷害原則  How to avoid harm?  Autonomy自主原則  What course of action maximizes patient’s right of self-determination?  Fidelity誠信原則  How to honour promises? Legal System in Hong Kong 18 Ethical Dilemma (2)  Confidentiality病人隱私權  How to keep privileged information?  Veracity誠懇信實  How to tell or conceal the truth?  Justice 公正分配原則  How to distribute the limited health care resources? Legal System in Hong Kong 19 Ethical Decisions  Active decisions  Lead directly to actions and bring about change.  Passive decisions  Deny, delay, or avoid action and maintain the status quo.  Shifting responsibility to avoid change.  Programmed decisions  Use precedents, established guidelines, procedures, and rules to resolve anticipated, routine, expected types of moral dilemmas.  Nonprogrammed decisions  Require unique response to complex and unexpected moral dilemmas. 20 Legal System in Hong Kong The rule of Law (1) The rule of law is the foundation of common law system  Law must not be arbitrary  Law must be impartially administered  Equality before the law  Law must be capable of guiding behavior  Law must be beneficial to society 21 Legal System in Hong Kong The rule of Law (2） Illustration  Anti-discrimination law in Hong Kong  Siu Kai Yuen v Maria College 2 HKLRD 775 https://www.hklii.org/cgi-bin/sinodisp/eng/hk/cases/hkdc/2005/55.html 1) In your opinion, can law protect the interests of Siu, the employee? 2) What is the major function of law that you identify in the Maria College case? 3) What are the characteristics of common law system as distinct from civil law system? What are the relevant (a) statutes and (b) case law cited or referred to in the case? 4) Whether Hong Kong has adopted the common law adversarial system of procedure or the inquisitorial system used in civil law jurisdictions? 22 Legal System in Hong Kong The rule of Law (3)  The power of the government and all of its servants shall be derived from law as expressed in legislation and the judicial decisions made by independent courts.  Legality: No one can do an act unless he can point to a legal justification for that action. If he cannot do so, the affected person can resort to a court which may rule that the act is invalid and of no legal effect. Compensation may be ordered in the affected person's favour  Equality: All persons, regardless of race, rank, politics or religion, are subject to the laws of the land.  The courts are independent of the executive. 23 Legal System in Hong Kong Legality  The rule of law governs the way in which power is exercised in Hong Kong  the power of the Government and all government servants shall be derived from law  No one, including the Chief Executive, can commit an act which would otherwise constitute a legal wrong  If a legal justification for the action cannot be found, the affected person can resort to a court 24 Legal System in Hong Kong Equality before the law  It is fundamental that all persons, regardless of their race, rank, politics or religion, are equally subject to the laws of the land  Further, the rule of law requires that the courts are independent of the Government Executive bodies  The Basic Law ensures that the legal system in the HKSAR will continue to give effect to the rule of law 25 Legal System in Hong Kong  Judicial independence  The rule of law requires that the judiciary be independent from the other branches of government.  That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests  After the 1997 transfer of sovereignty of Hong Kong to the PRC, the independence of the judiciary is constitutionally provided for and enshrined in Article 85 of the Basic Law EXE 26 Legal System in Hong Kong : E ? [. retirement of age - it's extend l ed 70 +55. LE Basic Law – Article 85, etc. (1) Appointment of judges  Article 92: judicial and professional qualities.  Article 88: the recommendation of an independent commission. Removal of judges  Article 89: a judge may only be removed from office for inability to discharge his or her duties, or for misbehaviour 34 + XI CHA , cheif judges V 5/11/1 : F 27 Legal System in Hong Kong Basic Law – Article 85, etc. (2) Security of tenure and undertaking  The tenure of office of judges is protected both by the Basic Law and by legislation.  Judges of District Court or above give undertaking to the Chief Executive that after they have completed their service, they will not practise as a barrister or solicitor in Hong Kong Immunity from legal action  Article 85: members of the Judiciary shall be immune from legal action in the performance of their judicial functions. 28 Legal System in Hong Kong Judges and retirement Security of tenure and undertaking  The Judicial Officers (Extension of Retirement Age) (Amendment) Ordinance 2019 came into effect in December 2019 extending the normal retirement ages of judges at the High Court and above, as well as magistrates, by 5 years. As a result, the normal retirement age for judges of the Court of Final Appeal, the Court of Appeal and the Court of First~ Fi Instance of the High Court was extended from 65 to 70, and the normal retirement age for members of the Lands Tribunal, magistrates and other judicial officers at the magistrate level was extended from 60 to 65. The normal retirement age of district judges was maintained at 65.  A further 5 years as Maximum Retirement Age 29 Legal System in Hong Kong ? At t Article 18 of Basic Law  BL (article 11)  Law previously in force (article 8)  Law enacted by the SAR  Laws enacted by the NPC or NPCSC which relate to defence and foreign affairs and otherwise as stated in article 18 of BL  NPCSC has the power to interpret (article 158) 30 Legal System in Hong Kong Sources of Law in Hong Kong  Statute law together with the common law and rules of equity are the principal sources of law in Hong Kong. They will remain the principal sources of law in Hong Kong after the transfer of sovereignty in 1997, although as from 1 July 1997 these sources will be subject to the Basic Law (Instrument A101), the principal constitutional instrument governing the Hong Kong Special Administrative Region. 31 Legal System in Hong Kong  Local Legislation * :E  Statute law; ultimate authority to legislate in HK X  Subsidiary legislation: proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any Ordinance and having legislative effect which is subject to the approval of the 3 Council, which may be given through either the * positive or the negative vetting procedure. ~ Xian  enacted by the legislature of a jurisdiction  enforceable and applicable to that jurisdiction 32 Legal System in Hong Kong  commular x A HKX ASTM : windtx & $$ conditionaltee > X - contigut fee + win- larger " Substantive and procedural law Substantive law  rules that govern: (a) the legal relationships between individuals (b) individuals and the Government Procedural law  rules that govern the process by which legal disputes are resolved.  the laws of litigation ? Kaw ! langer. 33 Legal System in Hong Kong ? in G Private and public law Private law  deals with the legal relationships and the conflicts that arise from them. Public law  deals with the relationships and conflicts where one of the parties is the Government 34 Legal System in Hong Kong PRC National Law  Under Article 158 of the Basic Law, an interpretation of a provision of the Basic Law by the Standing Committee of the National People’s Congress is to be followed by the courts of Hong Kong in applying the relevant provision.  Several national laws of the People's Republic of China apply in Hong Kong by virtue of Article 18 of the Basic Law.  National Security Law gazetted on 30 June 2020 35 Legal System in Hong Kong The Basic Law of HKSAR (1)  Ensures that the legal system in the HKSAR will continue to give effect to the rule of law, by providing that the laws previously in force in Hong Kong (that is, the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law, and subject to subsequent amendment by the HKSAR legislature. 36 Legal System in Hong Kong The Basic Law of HKSAR (2)  Articles 2 High degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication  Article 3 Executive authorities and legislature shall be composed of permanent residents of Hong Kong  Article 5 Previous capitalist system and way of life shall remain unchanged for 50 years. 37 Legal System in Hong Kong The Basic Law of HKSAR (3)  Article 8 Common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained  Article 9 In addition to the Chinese language, English may also be used as an official language  Article 11 the social and economic systems, … , the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this Law. 38 Legal System in Hong Kong The Basic Law of HKSAR (4)  Article 25 All Hong Kong residents shall be equal before the law.  Article 35 Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers..  Article 36 Hong Kong residents shall have the right to social welfare in accordance with law. 39 Legal System in Hong Kong The Basic Law of HKSAR (5)  Article 144 The Government shall maintain the policy previously practised in Hong Kong in respect of subventions for non-governmental organizations in fields such as education, medicine and health, …  Article 148 The relationship between non-governmental organizations in fields such as … medicine and health,.. shall be based on the principles of non-subordination, non-interference and mutual respect. 40 Legal System in Hong Kong The Basic Law of HKSAR (6)  Article 18  The laws shall be those previously in force and the laws enacted by the legislature of HKSAR.  National laws shall not be applied in HKSAR except for those listed in Annex III to this Law..  Laws listed in Annex III to this Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by the Basic Law.  If NPCSC decides HKSAR is in a state of emergency, CPC may apply national laws in HKSAR 41 Legal System in Hong Kong  Common Law System (1) (7)  Common law system is the underlying tradition of the English legal system. Rasse rudgement It comprises &  judge-made law (common law and equity) redgeme &  statute law (or legislation). ↳ it ' blinding effect  Common law role" "lau making Y "judge make - proces Created through the decisions of the superior courts in a court hierarchy ratio decidendi E Lica   obiter dicta X SAGA print , SA = - Btw. Ther : EP  doctrine of precedent: stare decisis > judgement 42 Legal System in Hong Kong  Common Law System (2) fes Big  Decisions of the Privy Council  Decisions of the House of Lords  BL (article 84): Courts may refer to precedents of other common law jurisdictions  Role of CFA 7 49 + non-permanent judge H 5 > = 7 : + : =>  Section 19 (“General principles of interpretation”) of Cap 1 (“Interpretation and General Clauses Ordinance”) ↳] F F him] / /STE : D Literal rule vs Purposive approach :  Use of Extrinsic Materials 2. purpresive approach 43 Legal System in Hong Kong Common Law System (3)  Equity 衡平法  Equity is an area arising from the English Court of Chancery  developed in disputes resulting from unfairness for which a remedy was not available through the strict boundaries of the common law  Equitable doctrines are: principles of fairness and justice ‘The just and equitable provision does, as equity always does, enable the court to subject the exercise of legal rights to equitable considerations’: Ebrahimi v Westbourne AC 360, 379 b-c (Lord Wilberforce) 44 Legal System in Hong Kong Civil Law System  The civil law system  also referred to as Roman law  derived from statutes  no judge is needed to interpret the law and apply precedents  codes 45 Legal System in Hong Kong E Inquisitorial system and adversarial system  Inquisitorial system  The judge will intervene, ask questions, and direct counsel  Adversarial system  A judge is passive and impartial throughout the proceedings  Inquiry or commission  Sometimes a country that maintain an adversarial system will, for special reasons, create a proceedings – where a judge will act in an inquisitorial manner 46 Legal System in Hong Kong  Common Law  Covers most of the English-speaking parts of the world  does not rely heavily on written law, it tends to be more practical and flexible  judge-made law in applying the existing law to new circumstances - D  jury system hop Cimina Court = Last EFRED E = 5 47 Legal System in Hong Kong RMP exToA + repetratio medic Partitioner  Practise wro < LEEN Musing - ordinance. ey Dangerous dry The Common Law and Rules of Equity  Common law and rules of equity are to be found primarily in the judgments of the superior courts in Hong Kong and other common law jurisdictions. In historical terms, reports of judgments handed down by judges have, since at least the 15th century, established in detail the legal principles regulating the relationship between state and citizen, and between citizen and citizen. There are now some hundreds of thousands of reported cases in common law jurisdictions which comprise the common law. The rights relating of freedom of speech, freedom of assembly, and freedom from arbitrary arrest or imprisonment have been spelt out in cases which were decided more than three centuries ago. 48 Legal System in Hong Kong Statute Law enacted in Hong Kong  The vast majority of statute law in force in Hong Kong is made locally and contained in the Laws of Hong Kong. Some English legislation applies in Hong Kong, but steps are being taken to “localise” that legislation (i.e. enact similar legislation in Hong Kong) before 1 July 1997. A great deal of legislation is made under delegated powers. This is called subsidiary legislation. For example, an ordinance may delegate to the CE in Council (the Chief Executive with the advice of the Executive Council) the power to make regulations to deal with the details of the implementation of a legislative scheme. 49 Legal System in Hong Kong Dangerous Drug Ordinance, s. 23(5) All dangerous drugs which are in the possession of any person by virtue of section 22(1)(e) or (f), (2) or (5) shall be examined at least once in every month by a person appointed by the medical officer in charge of the hospital, health centre or clinic, and if it appears to the person by whom such examination is carried out— (a) that a dangerous drug is in the possession of such person otherwise than in accordance with this Ordinance; (b) that the proper quantity of any dangerous drug is not in the possession of such person; or (c) that any dangerous drug has been supplied to or supplied or dispensed by such person otherwise than in accordance with this Ordinance, he shall forthwith notify theLegD irysetemctinoHorn.g Kong al S 50 Dangerous Drug Ordinance, s. 22(1) Authority for certain persons to possess, … DD (e) a person— (i) who is a registered pharmacist or an approved person; (ii) who is employed or engaged at a prescribed hospital, at a health centre or clinic maintained by the Government or at a health centre or clinic of the Hong Kong Garrison; (iii) whose duties in that employment or engagement include the dispensing or supply of medicines for that, or any other such, hospital, health centre or clinic; (f) a sister for the time being in charge of a ward, … (g) a person in charge of a laboratory used for the purposes of research or instruction and attached to a university or to an approved hospital or institution,.. 51 Legal System in Hong Kong 15 minutes break 52 Legal System in Hong Kong Coroners Ordinance, Cap. 504 Inquest into the death  Section 14(1)(a) a person dies- 1. suddenly 2. by accident or violence; 3. under suspicious circumstances;  S14(1)(b) the dead body of a person is found in or brought into Hong Kong,  S15 under custody;  S16 directed by Secretary for Justice;  S18 certain civil aviation accidents or merchant shipping casualties 53 Legal System in Hong Kong Coroners Ordinance, Cap. 504 (cont’d)  Section 14(1)(a) … and whether or not the death of the person is a reportable death, a coroner may, if he considers that an inquest is necessary, hold an, with or without a view of the body as he thinks fit. 54 Legal System in Hong Kong Twenty (20) Reportable Deaths (1) As specified in Part 1 of Schedule 1 1. unable to accurately state the medical cause of the death in the certificate of the cause of death. 2. no registered medical practitioner has attended the person during his last illness within 14 days prior to his death 3. accident or injury (sustained at any time) caused the death. 4. a crime or suspected crime caused the death. 55 Legal System in Hong Kong Twenty (20) Reportable Deaths (2) 5. Any death of a person where— (a) an anaesthetic caused the death; (b) the person was under the influence of a general anaesthetic at the time of the death; or (c) the death occurred within 24 hours after the administering of a general anaesthetic. 6. Any death of a person where— (a) an operation, whether or not lawful, caused the death; or (b) the death occurred within 48 hours after a major operation (as determined in accordance with prevailing medical practice), whether or not lawful. 56 Legal System in Hong Kong Twenty (20) Reportable Deaths (3) 7. Any death of a person where— (a) the death was caused by— (i) an occupational disease, within the meaning of section 3 of the Employees’ Compensation Ordinance (Cap. 282); or (ii) pneumoconiosis, or mesothelioma, within the meaning of section 2(1) of the Pneumoconiosis and Mesothelioma (Compensation) Ordinance (Cap. 360), or both of those diseases; or (a) having regard to the nature of the last illness of the person, the medical cause of the death and the nature of any known occupation or employment, or previous occupation or employment, of the person, it is reasonable to believe that the death may be connected, either directly or indirectly, with any such occupation or employment. 57 Legal System in Hong Kong Twenty (20) Reportable Deaths (4) 8. Any still birth where— (a) there is doubt as to whether the still born foetus was alive or dead at the time of birth; or (b) there is a suspicion that the still birth might not have been a still birth but for the wilful act or neglect of any person. 9. Any death of a woman where the death occurred within 30 days after— (a) the birth of her child; (b) an operation of abortion, whether or not lawful; or (c) a miscarriage. 58 Legal System in Hong Kong Twenty (20) Reportable Deaths (5) 10. Any death of a deceased where— (a) septicaemia caused the death; and (b) the primary cause of the septicaemia is unknown. 11. Any death of a person where there is a suspicion the death was caused by suicide. 12. Any death of a person where the death occurred whilst the person was in official custody. 13. Any death of a person where the death occurred during the course of the discharge of his duty by a person having statutory powers of arrest or detention. 59 Legal System in Hong Kong Twenty (20) Reportable Deaths (6) 14. Any death of a person where the death occurred in the premises of a department of the Government any public officer of which has statutory powers of arrest or detention. 15. Any death of a person where the person— (a) is a patient, within the meaning of section 2 of the Mental Health Ordinance (Cap. 136), and the death occurs in a mental hospital within the meaning of that section; or (b) is a patient the subject of an order under section 31 or 36 of that Ordinance and the death occurs in a hospital other than such a mental hospital. 60 Legal System in Hong Kong Twenty (20) Reportable Deaths (7) 16. Any death of a person where the death occurred in any premises in which the care of persons is carried on for reward or other financial consideration (other than in any premises which comprise a hospital, nursing home or maternity home registered under the Hospitals, Nursing Homes and Maternity Homes Registration Ordinance (Cap. 165)). 17. Any death of a person where the death was caused by homicide. 18. Any death of a person where the death was caused by the administering of a drug or poison by any other person. 61 Legal System in Hong Kong Twenty (20) Reportable Deaths (8) 19. Any death of a person where ill-treatment, starvation or neglect caused the death. 20. Any death of a person which occurred outside Hong Kong where the body of the person is brought into Hong Kong. 62 Legal System in Hong Kong Chinese Customary Law  Some aspects of Chinese customary law apply in Hong Kong. For example, under section 13 of the New Territories Ordinance (Chapter 97) the courts may recognise and enforce Chinese customs or customary rights, in relation to land in the New Territories; and Chinese law and custom is recognised in the Legitimacy Ordinance (Chapter 184) 63 Legal System in Hong Kong Categories of law  private law as between people like law of contract, law of tort, law of property, law of trust, law of succession, family law  public law as between Government and people like criminal law, administrative law, constitutional law  international law as between states like public international law and private international law 64 Legal System in Hong Kong 思想犯罪不構成犯罪 Criminal Law and Civil Law  Sanction of punishment vs resolution of disputes; > 90 %  Beyond reasonable doubt vs balance of probabilities; 750 %.  deals with offenses against society as a whole vs deals with private 65 Legal System in Hong Kong Which is more accurate?  Nurses may be held criminally liable whenever they prescribed narcotic drugs;  Nurses cannot be held criminally liable for prescribing narcotic drugs if a doctor gives them permission to do so. 66 Legal System in Hong Kong Elements of a crime  actus reus 犯罪行為, the activity that constitutes the offence;  mens rea犯罪意圖, the intention to carry out the activity or a high degree of reckless indifference as to the probable outcome of a particular activity. ? mess up 67 Legal System in Hong Kong International Co-operation (1)  The judgments and awards of the Hong Kong High Court may be enforced in most common law jurisdictions and in consequence of international agreements and arrangements, in a number of foreign countries including France, Germany and Italy. Reciprocal arrangements exist for the enforcement in Hong Kong of the judgments of the superior courts of those countries that will enforce Hong Kong’s judgments. Similarly, maintenance orders made in matrimonial proceedings can be enforced, on a reciprocal basis, in a number of overseas countries. 68 Legal System in Hong Kong International Co-operation (2)  Extradition agreements provide for the surrender of persons who are accused or convicted of a serious criminal offence committed within the jurisdiction of one of the Parties to the agreement who are found in the territory of the other Party. A substantial number of UK extradition agreements have been applied to Hong Kong. 69 Legal System in Hong Kong International Law (1)  an agreement between sovereign states and members of international organizations  treaties or conventions  e.g. Sino-British Joint Declaration, an international treaty registered with the United Nations 70 Legal System in Hong Kong International Law (2)  Over 260 international treaties and agreements have been applied to Hong Kong covering free trade, taxation, investment promotion and protection. A treaty does not constitute part of Hong Kong’s domestic law until given effect by legislation. Nonetheless it may affect the development of the common law. It may, for example, be resorted to by a court as an aid to interpretation. The rapidly developing rules of customary international law can also become absorbed into the common law. Legal System in Hong Kong 71 The Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645)  Came into operation on 29 January 2024.  Implements the “Arrangement” signed on 18 January 2019.  Establishes a more comprehensive mechanism for REJ”).  Covers effective Mainland and Hong Kong Judgments including those given in respect of certain types of disputes over intellectual property rights.  Covers both monetary and non-monetary reliefs 72 Legal System in Hong Kong 三司 Legal institutions  Legislative institutions  The Basic Law provides for the primary legislative body in HK to be the Legislative Council (art 66).  Subordinate (or subsidiary) legislation  Judicial institutions  Courts – the main function of the courts is to administer justice  Executive institutions  The executive institution in HK is the HKSAR government.  The most relevant of these executive authorities to a study of the legal system is the Department of Justice.  The DOJ comprises 5 divisions 73 Legal System in Hong Kong Legal Personnel  Chief Executive  Secretary for Justice  Legislative Council Members  Judges  Juries  Barristers and solicitors  Duty lawyers  Justices of the Peace  Academic personnel 74 Legal System in Hong Kong The Courts (1) The courts of justice in Hong Kong are  the Court of Final Appeal 終審法院,  the High Court 高等法院 (which comprises the Court of Appeal 上訴法庭 and the Court of First Instance 原訟法庭),  the District Court 區域法院,  the Magistrates' Courts 裁判法院,  the Coroner's Court 死因裁判法庭, and  the Juvenile Court 少年法庭. 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土地審裁處,  the Labour Tribunal 勞資審裁處,  the Small Claims Tribunal小額錢債審裁處 and  the Obscene Articles Tribunal 淫褻物品審裁處. 75 Legal System in Hong Kong The Courts (2)  Court of Final Appeal  replace Privy Council  determine the particular appeal 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.  develop the law for the community  Court of Appeal  hears appeals on all matters, civil and criminal from High Court and the District Court, Lands Tribunal  makes rulings on questions of law referred by lower courts  Chief Judge as the ex-officio President  Thirteen (13) other Justices of Appeal  One or more Justices of Appeal may be appointed as vice-presidents 76 Legal System in Hong Kong The Courts (3)  Court of First Instance  jurisdiction is unlimited in both criminal and civil matters  hears appeals from Magistrates’ Courts, the Small Claims Tribunal, the Obscene Articles Tribunal, the Labour Tribunal and the Minor Employment Claims Adjudication Board. For criminal trials, judges of the Court of First Instance sit with a jury of seven (nine on the special direction of the judge) (s3 of Jury Ordinance)  Article 46 of National Security Law provides that the Secretary for Justice may direct a case be tried without jury 77 Legal System in Hong Kong The Courts (4)  District Court  limited jurisdiction in both civil and criminal matters  hears civil disputes of a value over $75,000 but not more than $3 million. Its criminal jurisdiction is limited to 7 years’ imprisonment  try criminal cases except murder, manslaughter and rape and the maximum term of imprisonment is seven years in its criminal jurisdiction  appeal against the assessment of stamp duty imposed by the Collector of Stamp Revenue 78 Legal System in Hong Kong The Courts (5)  Magistrates’ Court  limited criminal jurisdiction covering a wide range of indictable and summary offences of punishment up to a maximum of two years’ imprisonment, or a fine of $100,000  the court may impose sentences of up to 3 years’ imprisonment where there are two or more indictable offences being dealt with at the same time  all indictable offences originate before a magistrate, the Secretary for Justice may apply a case transferred to the District Court, or Court of the First Instance  Cantonese-speaking special magistrates, not legally qualified are appointed to deal with cases like hawking and minor traffic offences and their powers are limited to fines of up to $50,000 and do not include the power to order imprisonment 79 Legal System in Hong Kong The Courts (6)  Coroner’s Court  inquires all deaths which occur as a result of accident or violence, or whenever a person dies suddenly and the cause of death is unknown, or a body is found within or brought into Hong Kong  Juvenile Court  hear charges against children (under 14) or young persons (under 16) for any offence other than homicide  children under the age of 10 are deemed not to have reached the age of criminal responsibility  have power to deal with care and protection cases involving young people aged up to 18 80 Legal System in Hong Kong The Courts (7)  Lands Tribunal  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  determine all matters under the Landlord and Tenant (Consolidation) Ordinance. 81 Legal System in Hong Kong The Courts (8)  Labour Tribunal  settle disputes between employees and employers  no legal representation is allowed  deals with claims arising from the alleged breach of a term of contract of employment, 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 payment 82 Legal System in Hong Kong The Courts (9)  Small Claims Tribunal  minor monetary claims involving amounts not exceeding $75,000  hearing is informal and no legal representation is allowed  Obscene Articles Tribunal  determine whether an article is an obscene or indecent article and where the matter publicly displayed is indecent referred by a court or magistrate  classify as Class I (neither obscene or indecent), Class II (an indecent article) or Class III (an obscene 83 article) Legal System in Hong Kong Market Misconduct Tribunal  Market Misconduct Tribunal 市場失當行為審裁處  comprises of three members and the Chairman is a judge of the court of the First Instance  determines whether market misconduct (which means insider dealing or any of five other specified types of conduct) in relation to securities of a listed corporation has taken place, the identity of any person engaged in that market misconduct, and the amount of profit gained (or loss avoided) as a result of the market misconduct. 84 Legal System in Hong Kong Electoral Affairs Commission 選舉管理委員會  responsible for  the conduct and supervision of elections and regulating the procedure at an election;  the process for the formation of the Election Committee;  the supervision of the registration of electors and the promotional activities  review and make recommendations on the delineation of Legislative Council and District Council constituency boundaries  make regulations, guidelines and arrangements for the registration of electors and the conduct of public elections. 85 Legal System in Hong Kong The Office of The Ombudsman 申訴專員公署 The Ombudsman has powers to:  investigate complaints from aggrieved persons about maladministration by the Government departments/agencies and public bodies listed in Part I of Schedule 1 to the Ombudsman Ordinance  investigate complaints against Government departments/agencies for non-compliance with the Code on Access to Information, including for the organisations listed in Part II of Schedule 1  initiate direct investigation, of her volition, into issues of potentially wide public interest and concern 86 Legal System in Hong Kong Nurses Registration Ordinance Cap. 164  Nursing Council of Hong Kong w.e.f. 3 May 1999  Composition of the Council as stipulated in section 3(2) of the Ordinance:  add 6 elected members  Correction of the register (NRO s7)  deceased, not practising nursing in Hong Kong, practise nursing in Hong Kong over 6 months without a certificate, no address in Hong Kong to be serviced notices 87 Legal System in Hong Kong Nurses Registration Ordinance, Cap. 164  Section 3 (2) The Nursing Council of Hong Kong Council shall consist of— (a) the Director; (b) one registered nurse in the public service of Hong Kong who shall be nominated by the Director of Health.. (c) 6 members, who shall be nurses registered … (ca) 6 members who are registered nurses or enrolled nurses and who are elected.. (d) 2 members, … one person nominated by each of the tertiary institutions which have a nursing programme,.. (db) one member to be nominated by the Hospital Authority … (e) one member who shall be a registered nurse specially qualified in.. mental diseases (f) 3 lay members 88 Legal System in Hong Kong Qualification for Registration (NRO s8)  minimum age of 21 years;  good character, AND  completed prescribed training  possesses a valid certificate to practise nursing issued by such certifying body as may be recognized by the Council from time to time as constituting sufficient evidence of his competency to practise nursing.  the Council may require any applicant for registration to prove his competency in nursing by examination and, if required, to undergo such further training specified by the Council. 89 Legal System in Hong Kong Why registered? Person not to practise as registered nurse without practising certificate (NRO s10A)  holder of a practising certificate  payment of the prescribed fee for the issue of a practising certificate 90 Legal System in Hong Kong Nurses Registration Ordinance Cap. 164  Falsification of register or roll and assumption of title of RN or EN  liable to a fine of $1,000 and to imprisonment for 3 months (NRO ss23 and 24)  Regulations (Cap 164A) under NRO s27  applications for registration & re-registration, enrolment and restoration, examinations and courses of training in nursing, matters relating to the conduct of nursing practice... 91 Legal System in Hong Kong Part 5 Disciplinary Proceedings And Offences Section 17 Disciplinary powers of the Council a) convicted of any offence punishable with imprisonment; b) guilty of unprofessional conduct; c) obtained registration or enrolment by fraud or misrepresentation; d) not at the time of registration or enrolment qualified to be registered or enrolled; or e) has contravened any prohibition imposed under section 25(1),.. 92 Legal System in Hong Kong Unprofessional Conduct & Penalty  Section 17(3) ( 不專業行為 ) Act or omission which could be reasonably regarded as disgraceful or dishonourable by registered nurses or enrolled nurses of good repute and competency.  Section 17(1), the Council, in its discretion, may—  order removal 從名冊除去  order removal for a specified period,  order reprimand 譴責, or  postpone judgment on the case for any period not exceeding 2 years, … 93 Legal System in Hong Kong Misconduct in a professional respect  Fraud or deception in claiming one’s professional qualification  Causing unnecessary public concern and arousing unrealistic expectations (five ladies in white coat in relation to a medical treatment)  Releasing patient information to the public domain  Incompetence, or negligence in carrying out a nursing function 94 Legal System in Hong Kong Offences punishable with imprisonment  Theft (shop lifting, patient property)  Indecent assault (taking apical rate without clinical indication)  Using a false instrument (sick leave certificate, Falsifying laboratory record)  Assault occasioning actual bodily harm 95 Legal System in Hong Kong Order made by Nursing Council of HK  Reprimand  Removal of name from the Registry/Roll for a certain period of time  Decision to be published in the Government Gazette. 96 Legal System in Hong Kong Prohibit nurses suffering from certain diseases from attending sick persons NRO s25  contracts any infectious disease within the meaning of the Quarantine and Prevention of Disease Ordinance (Cap. 599)  likely to endanger the health of any person attended by him  contravention of a prohibition imposed under this section shall constitute a ground for the institution of disciplinary proceedings 97 Legal System in Hong Kong Short Questions for Discussion Q1 What are the existing sources of law in Hong Kong? Cite the relevant article(s) in the Basic Law. Q2. What are the three key meaning to the rule of law? Q3. What is the meaning of “stare decisis” under the Common Law system? Q4. What is the cab-rank rule which barristers are bound by? 98 Legal System in Hong Kong PvAfE barrister X FE ⼤律師訓練期12個⽉/甚⾄6個⽉ 事務律師要2年 點解分兩種律師 醫療事故快揾律師因為唔洗disclose Long Question for Discussion (1) The legal profession in Hong Kong is divided into two branches, barristers and solicitors. Historically, Hong Kong has a track record of an independent Bar and it is only recently that the Chief Justice of Hong Kong has created a special scheme, under which a solicitor would be able to gain the status of “solicitor-advocate” along with right of audience at the High Court.  Argument for fusion  Argument against fusion 99 Legal System in Hong Kong Long Question for Discussion “The current split between barristers and solicitors as legal professionals is an undesirable and costly one. It would be in the greater interests of the legal profession and the public alike if the two branches of profession would be fused. This would serve to decrease costs, increase the quality of services and enhance access to justice.” Hon Poon Ag CJHC in Court explained otherwise in  Re Mark Taylor Simpson QC HKCFI 2689; HCMP 1013/2019 (31 October 2019) https://www.hklii.org/en/cases/hkcfi/2019/2689 100 Legal System in Hong Kong Re Mark Taylor Simpson QC HKCFI 2689; HCMP 1013/2019 (31 October 2019) Read the judgment, in particular:- C. Maintaining a strong and independent local Bar C1. Independence of the Bar C2. The “cab-run” rule C3. Strong and independent local Bar and administration of justice D. Solicitor advocates D1. Legislative history leading to their introduction D2. SA Code D3. A relatively nascent development 101 Legal System in Hong Kong DoJ solicitors allowed to take silk  Legal Practitioners (Amendment) Bill 2021 was passed on 25 August 2021 allowing legal officers of the Department of Justice, including solicitors, to be appointed as Senior Counsels.  In the past, only barristers could “take silk,” or be appointed as Senior Counsels. Following the amendment, solicitors who work in the Department of Justice will have the chance to attain the honor too.  Senior Counsel appointments are usually for life in the legal industry. To minimize disruptions to the private sector, the government has decided that legal officers can only carry the Senior Counsel title during their tenure at Department of Justice. 102 Legal System in Hong Kong Long Question for Discussion (2) Currently, conditional fee arrangements (whereby there is an agreement for legal fees to be paid only in the event of success of an action) and contingency fee arrangements (whereby there is an arrangement for the lawyer’s fee to be calculated as a percentage of the amount awarded by the court) are banned in Hong Kong.  Argument for contingency fees  Argument against contingency fees 103 Legal System in Hong Kong References 1) Legislative Council – Bills https://www.legco.gov.hk/en/legco- business/council/bills-list.html#bills 2) Hong Kong e-Legislation https://www.elegislation.gov.hk/ 3) Hong Kong Judiciary – Judgments https://www.judiciary.hk/en/judgments_legal_reference/j udgments.html 4) Hong Kong Legal Information Institute https://www.hklii.org/ 5) HKSARG Gazette https://www.gld.gov.hk/egazette/english/gazette/toc.ph1p04 Legal System in Hong Kong