Legal System PDF

Topic 1 ======= Norman Conquest of England -------------------------- - - - - - After Norman Conquest --------------------- - - - - - - - - - - - King's court (Curia Regis) -------------------------- - - - - - Strengthened Justice ---...

Topic 1 ======= Norman Conquest of England -------------------------- - - - - - After Norman Conquest --------------------- - - - - - - - - - - - King's court (Curia Regis) -------------------------- - - - - - Strengthened Justice -------------------- - - - - - - - - - - - Writ ---- - - - - - - - - - - - - - - - - - - Magna Carta, 1215 ----------------- - - - - - - - The Rule of Law --------------- - - - - Early Statute Law (don't need to memorise each statue's function) ----------------------------------------------------------------- - - - - Royal Courts (system) --------------------- Court of Common Pleas (between laypeople) ----------------------------------------- - - - - - - - Court of King's Bench (hears cases that involve the king) --------------------------------------------------------- - - - - - - Court of Exchequer ------------------ - - - - - - - - - - - - - - Court of Chancery & Equity -------------------------- - - - - Equity ------ - - - - Common Law v.s. Equity ---------------------- - - - - - - - - Common Law v.s. Equity ---------------------- - - - - - Equity will not suffer a wrong to be without a remedy ----------------------------------------------------- - - - He who comes to equity must come with clean heads ------------------------------------------------- - - Equity acts in personam ----------------------- - - - - - - Delay Defeats Equity + Equality is equity ----------------------------------------- - - - Common Law vs Equity -------------------- - - - - - - - Common Law Court (the King's Bench) → the statue prohibited the College from selling its lands. Thus, the land transfer should be void Court of Chancery → When Magdalene College sold the land to the Queen, the College had a deliberate intention of circumventing the statue in question → The court of Chancery issued an injunction to prohibit the enforcement of the Common Law Court's order (i.e.,, the initial land transfer was not void) The King: concluded that in the event of any conflict between the two jurisdictions of common law and equity, equity will prevail 22. - - - - - - Topic 2 ======= Cold of Hammurabi ----------------- - - - - - - Roman Republic (civil law) 509 B.C. -- 27 B.C. ---------------------------------------------- - - - - - - - - - - - - - - - - - - - - Roman Empire ------------ - - - - - - Two types of civil judges ------------------------- - - - - - - - - - - - - Functions of jurists -------------------- - - - - - - - - Value of judge's decisions (low\_ --------------------------------- - - - - - - - - - - - - - Treatise -------- - - - - - - Patented jurists ---------------- - - - - - - Institutes ---------- **Gaius, a jurist of the Roman Empire** - - - Corpus Juris Civilis ("Body of Civil Law") ------------------------------------------ - - - - - - - - - - - Europe after Rome ----------------- - - - - - - - - - - - Common Law vs Civil Law ----------------------- - - - - - - - - - - - - - - - - - - Common law → **Doctrine of Precedent** - - - Civil law → **No Doctrine of Precedent** - - -- In practice? - Common Law: - - - - - Civil law: -- Judges act like "investigators" -- Judges establish the facts the case and apply the law -- No jury -- Judge\'s Decision Is Less Important In Shaping The(civil)law - Common Law: - - - - Civil law: - - - - - Religious Law (e.g., Muslim Law) -------------------------------- - - - - - - - - - The holy book of Islam: *Quran* - Prohibit consumption of pork Customary Law ------------- - Customs, with a degree of legality - Beyond mere usage or habit - Still play an important role, especially in mixed legal systems - Some customary laws discriminate (e.g. gives women less power) - Example (Customary inheritance law): - - E.g, in several African countries, India, mainland China, and HK Customary Law ------------- E.g., South Africa - Dutch jurists drew on Roman Law in their writing → Roman-Dutch Law - Roman-Dutch Law exported the Cape Colony in 17th and 18th centuries - Arrival of English common law in the 19th century - Mixed system: Roman-Dutch law + English common law Topic 3 ======= British Occupation of Hong Kong ------------------------------- - 1729: Emperor Yongzheng (雍正) banned opium trade in China - Huge economic interests → western opium merchants continued to smuggle opium to China - 1773: British East India Company obtained the monopoly of opium in India - China imported more and more opium → outflow of silver - 1838-1839: seized British merchants' opium stocks at Canton + threaten the - death penalty for future offenders - 1840-1842: First Opium War - - - - - Captain Elliot's proclamation ----------------------------- - 26 Jan 1841: Captain Elliot declared British sovereignty over HK - Early Feb: Captain Elliot proclaimed: - - Binary legal system in HK: - - - British gov soon recanted Elliot's proclamation on the basis that Elliot had no authority → Replaced Elliot by Sir Henry Pottinger Treaty of Nanking (1842) ------------------------ - ARTICLE III. - "It being obviously necessary and desirable, that British Subjects should have some Port whereat they may careen and refit their Ships, when required, and keep Stores for that purpose, His Majesty the Emperor of China [cedes to Her Majesty the Queen of Great Britain, etc., the Island of Hong Kong, to be possessed in perpetuity] by Her Britannic Majesty, Her Heirs and Successors, and to be [governed by such Laws and Regulations as Her Majesty the Queen of Great Britain], etc., shall see fit to direct." - English law would operate in HK unless it conflicted with the customs or circumstances of HK Constitutional mechanism ------------------------ - Two constitutional documents issued in the form of royal prerogative: - - - - - - - - - Opening of Criminal Court ------------------------- - **4 March 1844** - In a temporary building near Government House - **Judges: (no legal training before)** - - - - A few residents were called and sworn in as a Grand Jury - - **First case**: - - - - First Attorney General and Chief Justice ---------------------------------------- - **First Attorney General of Hong Kong** - - - - - **First Chief Justice** - - - - Supreme Court Ordinance (1844) ← came from 皇室訓令+英皇制誥 ------------------------------------------------------------ - 21 August 1844 - Established the Supreme Court of Hong Kong - - - Section 3: English laws have effect in the colony except where inapplicable to local circumstances in Hong Kong or its inhabitants - Amended in 1845 & 1846: - - Amended in 1873: - First Case in Supreme Court --------------------------- - **1st Oct 1844: Supreme Court opened** - Admitted admissions to practise in the Colony: - - - **2nd Oct 1844: First case** - - - - - Poisoned Bread Case (1857) -------------------------- - **15th Jan 1857**: An attempt to poison hundreds of foreign residents in HK - - **Arsenic found in the bread made by the principal bakery in HK** - **Owner of the bakery: Cheong Ah-Lum** - - - **Cheong was arrested in Macao and sent back to HK for trial** - **Cheong's lawyer:** - - - - - **Attorney General:** - - - Whether Cheong had mixed the poison or ordered it to be mixed → a matter of fact → decided by the jury - Judge guided the jury: - - Jury: A verdict of NOT guilty by a majority of five to one - Fair trial - Benefit of the doubt - Rule of law Application of English Law Ordinance (1966) ------------------------------------------- - Recall that Supreme Court Ordinances (1844, 1845, 1846 & 1873): - - - **Application of English Law Ordinance (1966)** - - - - - - - - - - - Note: Acts of Parliament = a kind of [English statutory rules] The 1997 Deadline ----------------- - Treaty of Nanking (1842) → HK Island → perpetuity - Treaty of Beijing (1860) → Kowloon → in perpetuity - Second Convention of Peking (1898) → New Territories → 99 year lease - - China and Britain negotiated on the future on HK The Sino-British Joint Declaration ---------------------------------- - Joint Declaration on the Question of Hong Kong (Joint Declaration) - Signed on 19 Dec 1984 - Ratified by the Chinese and British governments on 27 May 1985 - Registered at the United Nation by the two governments on 12 June 1985 - Consists of several documents 1. The Joint Declaration itself 2. Annex I: - 3. Annex II: - 4. Annex III: - Provides for the protection of land rights and for land leases granted by the HK government before 1 July 1997 - Establishes the Land Commission, which operated until 30 June 1997 5. An exchange of memoranda: - On the status of British Dependent Territories Citizens The Joint Declaration --------------------- - Key features: 1. Britain would "restore" HK to the People's Republic of China with effect from 1 July 1997; 2. Before 1 July 1997, Britain would continue to administer HK; 3. From 1 July 1997, HK would become a "Special Administrative Region" (SAR) of China; 4. HKSAR will be directly under the authority of the Central People's Government and will enjoy a high degree of autonomy (except in foreign and defence affairs); 5. HKSAR will be vested with executive, legislative and independent judicial power including that of final adjudication; 6. The laws in force before the resumption of the exercise of sovereignty by China will remain basically unchanged; 7. the Government of the HKSAR will be composed of local inhabitants; 8. Foreign nationals working for the government of Hong Kong may remain in employment; 9. HK's existing social and economic system would remain unchanged; 10. Rights and freedoms, private property, ownership of enterprises, legitimate rights of inheritance and foreign investment will be protected by law 11. HKSAR will remain the status of a free port and a separate customs territory; 12. HKSAR will retain the status of an international financial centre and there will be a free flow of capital; 13. the HK dollar will continue to circulate and remain freely convertible; 14. HKSAR will have independent finances; 15. HKSAR may establish mutually beneficial economic relations with the United Kingdom and other countries; 16. using the name \"Hong Kong, China\", the HKSAR may on its own develop economic and cultural relations with states, regions and relevant international organisations; 17. The maintenance of public order in the HKSAR will be the responsibility of the HKSAR itself, and 18. The above-stated basic policies of the People\'s Republic of China regarding Hong Kong and the elaboration of them in Annex I to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People\'s Republic of China, by the National People\'s Congress of the People\'s Republic of China, and they will remain unchanged for 50 years. Annex I & Establishment of HKSAR -------------------------------- - Establishment of the Hong Kong S.A.R.: - "The Constitution of the People\'s Republic of China stipulates in Article 31 \"*that the state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by laws enacted by the National People\'s Congress in the light of the specific conditions*.\" - In accordance with this Article, the People\'s Republic of China shall, upon the resumption of the exercise of sovereignty over Hong Kong on 1 July 1997, establish the Hong Kong Special Administrative Region of the People\'s Republic of China." - This relates to jurisprudence Jurisprudence ------------- - H.L.A. Hart (1907---1992): - **Primary rules:** - - **Secondary rules:** - - - - A legal system must have both primary and secondary rules - Why does a system with only primary rules NOT work? 1. 2. 3. - **Secondary rule to solve uncertainty problem** - - - - **Secondary rule to solve static problem** - - - Secondary rule to solve efficiency problem - - Jurisprudence (cont.) --------------------- **Rule of recognition** - Recognize legal validity - Explains how rules are unified (i.e., regress of legal validity) - At the top of the chain of validity - How does the rule of recognition get its status as rule/ law? - Internal point of view (attitude of rule acceptance) -  Annex I & The Basic Law ----------------------- - "The National People's Congress of the People's Republic of China [shall enact and promulgate a **Basic Law**] of the Hong Kong Special Administrative Region of the People's Republic of China \[\...\] in accordance with the Constitution of the People's Republic of China, - Stipulating that after the establishment of the HKSAR the [socialist system] and the socialist policies shall not be practised in the HKSAR - And that HK's previous [capitalist system] and life-style shall remain unchanged for 50 years Annex I & Laws of the SAR ------------------------- - Annex I - Annex I & Laws Previously in force ---------------------------------- - Joint declaration - The HKSAR will be vested with executive, legislative and independent judicial power, including that of final adjudication. [The laws currently in force in HK will remain basically unchanged]. - Annex I - After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. [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 any amendment by the Hong Kong Special Administrative Region legislature. Annex I & Precedents -------------------- - Annex I - The courts shall decide cases in accordance with the laws of the Hong Kong Special Administrative Region and [may] refer to precedents in [other common law jurisdictions] Annex I & Joint Liaison Group ----------------------------- 1. In furtherance of their common aim and in order to ensure a smooth transfer of government in 1997, the Government of the United Kingdom and the Government of the People\'s Republic of China [have agreed to continue their discussions] in a friendly spirit and to develop the cooperative relationship which already exists between the two Governments over Hong Kong with a view [to the effective implementation of the Joint Declaration]. 2. In order to meet the requirements for liaison, consultation and the exchange of information, the two Governments have agreed to [set up a Joint Liaison Group]. Joint Liaison Group ------------------- 3. The functions of the Joint Liaison Group shall be: a. To conduct consultations on the implementation of the Joint Declaration b. To discuss matters relating to the smooth transfer of government in 1997; c. To exchange information and conduct consultations on such subjects as may be agreed by the two sides 4. Matters on which there is disagreement in the Joint Liaison Group shall be referred to the two Governments for solution through consultations Joint Liaison Group (cont.) --------------------------- - Established in 1985 - Organ of liaison; NOT organ of power - Must meet in HK, London and Beijing, at least once a year at each venue - Term of JLG ended on 1 Jan 2000 - Between 27 May 1985 and 1 Jan 2000. Held 47 plenary meetings: - - - - Established special sub-groups which met many times - E.g., sub-group on International Rights and Obligations - Reached many agreements, such as: - Establish the Court of Final Appeal on 1 July 1997 - Localisation of UK legislation in many areas of law - - Bilateral agreements between HK and various countries remain in force after 30 June 1997 - - HKSAR should be deemed to be a separate contracting party to the World Trade Organisation - HKSAR should continue to participate in various international organisations after 30 June 1997 - - Some travel and ID documents would continue to be valid Annex III & Land Commission --------------------------- - **Annex III:** - leases of land granted by the British HK Government \[...\] that [expire before 30 June 1997] \[...\] may be extended if the lessee so wishes for a period expiring not later than 30 June 2047 \[...\] - Where leases of land \[...\] [expire after] 30 June 1997, they shall be dealt with in accordance with the relevant land laws and policies of the HKSAR. - From the entry into force of the Joint Declaration until 30 June 1997, [new leases of land may be granted by the British HK Government] for terms expiring not later than 30 June 2047 - From the entry into force of the Joint Declaration until 30 June 1997, premium income obtained by the British HK Government from land transactions shall, after deduction of the average cost of land production, be [shared equally] between the British HK Government and the future HKSAR Government Annex III --------- - **Annex III:** - In the case of old schedule lots, village lots, small houses and similar rural holdings, where the property was on 30 June 1984 held by, or, in the case of small houses granted after that date, the property is granted to, a person descended through the [male line] from a person who was in 1898 a resident of an established village in Hong Kong, [the rent shall remain unchanged] so long as the property is held by that person or by one of his lawful successors in the [male line]. - **Recall:** - Second Convention of Peking (1898) → New Territories 99 year lease - Customary Law (From topic 3) Land Commission --------------- - Land Commission - Established in 1985; Dissolved on 30 June 1997 - conduct consultations on the implementation of Annex III on land leases - Met in HK for 35 formal meetings - Reached agreement on: - - - - 1994: Agreed to grant land for the Chek Lap Kok airport and airport railway - 1995: Agreed to grant land for a River Trade Terminal in Tuen Mun - 1996: Agreed to grant land for Container Terminal No. 9 Reunification Ordinance ----------------------- - Midnight on 1 July 1997 transferred the sovereignty of HK to the PRC - At 2:45 am on 1 July 1997 Provisional Legislative Council held its first meeting in the Hong Kong Convention and Exhibition Center - Enacted the **[Hong Kong Reunification Ordinance]**. E.g.,: - - At 3:55 am on 1 July 1997 → The meeting of the Provisional Legislative Council was adjourned - On the same day: The then Chief Executive Tung Chee-hwa (董建華) signed the bill and gazette it into effect