Hong Kong Legal System PDF

Hong Kong Legal System By Dr. Martin Lai (2024)  Topic 9 Civil Justice System  Civil justice system Civil justice system: allows individuals or institutions to resolve their legal grievances and enforce their legal rights Disputes between two or more persons or institution...

Hong Kong Legal System By Dr. Martin Lai (2024)  Topic 9 Civil Justice System  Civil justice system Civil justice system: allows individuals or institutions to resolve their legal grievances and enforce their legal rights Disputes between two or more persons or institutions  (try to resolve the dispute themselves)  if fails, may start a civil litigation  let an impartial court to decide on the matter Examples: – Someone refuses to pay the debt he owes you  recover debt – Breach of contract / Tort (e.g. personal injuries)  claim compensation – Tenant fails to pay you rent  claim unpaid rent – Many others (e.g. Matrimonial matters, employees’ compensation, administration of trusts and estates of deceased person)  Criminal case vs Civil case Criminal case – Instituted under the name of HKSAR – Deter crimes and punish criminals Civil case – Instituted by: The Government against individuals and vice versa or individuals against other individuals – Seek compensation / recover properties / enforce obligations etc.  Whether or not to start a civil action? Can you settle the dispute without going to court? E.g. arbitration Do you have sufficient legal basis to start a civil action? Counterclaim? Can you obtain what you want if you win the case? E.g. bankrupt or wound up Can you afford the expenses? E.g. legal representation (if win  may recover ~70% from defendant) Can you afford the time? Months or years Is there any deadline for starting a civil action? Limitation period What risks will you face if you start a civil action? Are you prepared to bear these risks? E.g. lose your case  pay opponent's cost  Legal advice for civil cases? Duty Lawyer Service’s Free Legal Advice Scheme (i.e. different from the Duty Lawyer Scheme) – Preliminary legal advice – No means test – Free of charge – No follow up service; Will not represent you in court High Court’s Resource Centre for Unrepresented Litigants – For people starting civil actions in District Court and High Court – Preliminary assistance on procedural matters only – No legal advice – No comments on merits of the case  Legal representation for civil cases? Legal Aid Department’s Legal Aid Scheme (2 types) – Need to pass both means test & merits test – Ordinary Legal Aid Scheme Means test: financial resources not exceeding HK$420,400 Scope: Most types of civil proceedings in District Court, Court of First Instance, Court of Appeal, Court of Final Appeal etc. – Supplementary Legal Aid Scheme Means test: financial resources exceed HK$420,400 but not HK$2,102,000 Scope: E.g., following cases where the claim is likely to exceed $75,000: – personal injuries or death; – medical, dental or legal professional negligence claims; – professional negligence claims against certain professionals – (others) Also, e.g., Representation for employees in appeals against awards made by the Labour Tribunal (irrespective of the amount in dispute)  Venue District Court (limited civil jurisdiction) – Contract, quasi-contract and tort claims not exceeding HK$3,000,000 – recovery of land where the annual rent, rateable value of the land or annual value of the land not exceeding HK$320,000 – Other claims in equity High Court (unlimited civil jurisdiction) – But some cases must be brought in Court of First Instance (e.g. judicial review, admiralty actions, bankruptcy and company winding-up) Labour Tribunal Small Claims Tribunal  Start a civil action in District Ct or High Ct Apply for the court to issue either a writ of summons or an originating summons Writ of summons: – If there is a dispute of fact – E.g. whether the defendant owes you money? – E.g. whether the defendant has damaged your goods? – E.g. whether the defendant has failed to perform a contractual obligation? Originating summons: – If there is a dispute of law or the interpretation of certain terms in a legal document (e.g. deed) – E.g. division of matrimonial assets  Start by issuing a writ of summon Writ of summons must be indorsed with either: – An endorsement of claim (i.e. a concise statement of the nature of the claim) or – A statement of claim (i.e. a formal statement of the plaintiff’s claim with the facts that will be relied upon along with the relief and remedy being claimed) The writ of summons has to be issued and filed with the court at the Registry  Service of the writ of summons A person against whom a claim is made must be given due notice so as to allow him/her to answer and defend the claim Thus, writ of summons must be served personally on the defendant either by: – the plaintiff or – the plaintiff’s agent Different ways to serve a writ of summons on a defendant who is in HK: – By personal service – By registered mail (to defendant’s usual or last known address) – By insertion through letter box If defendant is a limited company  serve to its registered office If defendant is not in HK  you need to obtain permission of the court before serving  Acknowledgement of Service & Defence After service of writ of summons  defendant have 14 days to file with the Court Registry an acknowledgement of service + whether intend to defend the proceedings If the writ of summons was served with endorsement of claim (i.e. without statement of claim) – If the defendant files the acknowledgment of service + notice of intention to defend  within 14 days, plaintiff have to file and deliver a statement of claim to the defendant If the writ of summons was served with statement of claim – If the defendant files the acknowledgment of service + notice of intention to defend  within 28 days following the expiry of the time limit for the defendant to file an acknowledgment of service  defendant should file and serve on plaintiff the defendant’s defence and counterclaim (if any)  Default and Summary Judgement If plaintiff does not file statement of claim to the defendant within the time limit  a judgement to dismiss the action may be entered against the plaintiff If defendant does not file an acknowledgment of service or a defence within the time limit  a default judgement may be entered against the defendant If it is plain that there is no defence to a claim  plaintiff may obtain a summary judgement If it is plain that there is no defence to a counterclaim  defendant may obtain a summary judgement  Pleadings Formal documents exchanged between plaintiff and defendant which set out each party’s case Include: – plaintiff’s statement of claim, reply and defence to counterclaim; – the defendant’s defence and counterclaim; and – certain other documents used to express the parties’ cases NOT include: – Writ of summons – Originating summons  Pleadings Purpose: – Gives fair notice to the other party of the stance of the pleading party – Defines issues of the dispute – Limits the generality of the claim and evidence – Allows each party to know what evidence to prepare for at trial Facts, not evidence, to be pleaded A party may raise a point of law in his pleading  but the point of law must not be argued in the pleading Plaintiff must also state the relief or remedy he is seeking (except for costs) in his pleading Defendant must respond to every allegation of fact by either: – admitting the allegation or – traverse the allegation by way of denial or by a statement of non-admission Must deal with each specific allegation that is not admitted  otherwise, deemed to be admitted  Interlocutory proceedings? Proceedings that deal with the rights of plaintiffs and defendants; ensure that the matter proceeds expeditiously and properly to trial Could happen between the commencement of the civil action and its final determination A party usually take such proceedings to: – apply to the court for more time to submit certain documents; – seek directions from the court regarding the conduct of the case; – compel the other party to comply with the court's directions; or – apply to the court to grant interim relief or remedy (e.g. injunction).  Interlocutory proceedings? Examples: – Plaintiff may apply for extension of time to extend the deadline for filing a reply to a defence – A party apply for amendment to the pleadings AFTER the close of pleadings – A party apply for more detailed information of the other party’s pleadings – A party apply for striking out part of the pleading of the other party. (E.g. rely on the ground that the other party’s pleading shows no reasonable cause of action or defence) – A party apply for documents to be disclosed from the other party  Injunctions Court order a party not to do something. Final injunction Interlocutory injunction: – Usually provisional and granted before trial – Generally last until the end of trial or until further order of the court – “to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action” were the plaintiff to win at trial Before granting an injunction, court will weigh (i) the plaintiff’s need for protection with (ii) the need to protect the defendant from injury resulting from the injunction The court will weigh the two on a “balance of convenience”  Injunctions Mareva Injunction – freeze a defendant’s assets – If there is a real risk of the defendant dissipating his/her assets before judgment is made  use Mareva injunction to protect the plaintiff from receiving nothing even if judgment is made in his/her favour Anton Piller Order – permits the plaintiff to enter the defendant’s premises to search for certain documents & to inspect, take away or make copies of them – Sought if the defendant is likely to conceal or destroy documents or materials in question Courts must exercise restraint in granting such orders, because they could be disastrous for the defendant (e.g. revealing important information to its competitors)  Burden and standard of proof Burden of proof is on the plaintiff Standard of proof = balance of probabilities Lord Denning: That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged but, if the probabilities are equal, it is not more likely than not that the events occurred Where the allegations are more serious  more compelling the evidence needs to be for the plaintiff to discharge the burden of proof – Does NOT mean that a different standard of proof is applied – More compelling evidence is needed as more serious conducts are inherently improbable Burden and standard of proof Criminal cases Civil cases Source: Educaloi  Burden and standard of proof What facts are at issue at the trial? Depends on: – Substantive law & – Contents of documents already filed to the court (e.g. statement of claim, defence and counterclaim) Because parties may have admitted to some facts in the documents A party can prove the facts in different ways, such as: – Oral evidence from witnesses Exchange of witness statements – Documents – Photographs – Audio Discovery – Videotapes – Electronic data Before trial, the parties have to disclose any evidence (i) which is relevant to the disputes at issue, and (ii) which they intend to rely on at trial  Discovery After the close of pleading  within 14 days  discovery (i.e. the parties exchange documents relating to matters in question) Purpose: Enable each party to have access to relevant documents held by the other side  avoid “trial by ambush” + may encourage settlements Disclose to the other side in form of a list (i.e. list of documents) Documents could include, e.g.: – Paper documents, – Photographs, – Audio – Video tapes – Electronic data  Discovery Have to disclose all documents relating to matters in question, even if some of them are harmful to their own case Each party can inspect the documents on other party’s list If a party thinks that he has documents that are privileged: – put them under category of privileged documents in the list of documents – may refuse to let the other party inspect them – If disputed  court will make a decision If a party thinks that the other party has not disclosed some documents: – can apply to the court for an order to compel the other party If the other party does not comply with the court’s order  apply to the court for a judgment against the other party  Exchange of witness statements Another way for a party to prove the facts: rely on oral evidence of witnesses Before the trial, courts normally directs each party to serve on the other party written statements of such oral evidence (i.e., witness statements) Witness statements are not made on oath. However, such statements will only be accepted as evidence by the court after the witness confirm the contents to be true on oath at the trial Plaintiff and defendant can opt not to give evidence themselves. However, if they intend to give their own oral evidence  must prepare their own witness statement Witness statement must only contain facts which the witness can prove of his personal knowledge (e.g. what he saw or heard) – Otherwise, the court may refuse to admit it as evidence, or give little or no weight to it  Expert witness Some cases involve technical matters outside the knowledge of the parties and the judge – E.g. related to medicine, phycology, surveying, engineering, statistics, economics If yes, parties may call expert witness to give evidence at trial – Costs: money and time To do so, the parties have to apply for leave from the court (i.e. permission from the court) Court may will then grant leave with appropriate directions e.g.: Number of expert witnesses from each side Time allowed for the parties to file and exchange their expert report If a party fails/refuses to comply with the court’s directions: – court may disallow him to give expert evidence or – court may order that judgement be entered against the defaulting party  Trial procedure Different modes of trial: District Court Court of First Instance Judge alone Judge alone N/A Judge & jury Judge & assessor (i.e. an expert Judge & assessor (i.e. an expert appointed to assist the court) appointed to assist the court) Master Master (i.e. a junior court officer) (i.e. a junior court officer)  Trial procedure High Court Ordinance: 33A Trial by jury in the Court of First Instance (1)Where, on the application of any party to an action the Court of First Instance is satisfied that there is in issue— (a) a claim in respect of libel, slander, malicious prosecution, false imprisonment or seduction; or (b) any question or issue of a kind prescribed for the purposes of this paragraph by rules of court, the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury. * * * (3) An action to be tried in the Court of First Instance which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the Court in its discretion orders it to be tried with a jury. Trial procedure Plaintiff’s opening submission Plaintiff’s witnesses (if any) examined, cross-examined and re-examined Defendant’s opening submission (if any) Defendant’s witnesses (if any) examined, cross-examined and re-examined Defendant’s closing submission Plaintiff’s closing submission Delivery of judgement  Remedies and enforcement Different remedies to winning party (e.g. damages and specific performance) Judgment creditor = winning party awarded damages or other sum of money Judgement debtor = losing party ordered to pay the amount However, courts do not enforce a judgment on its own initiative  winning party does not automatically obtain the remedy Enforcement is necessary when the court orders a payment or an injunction but the party against whom the order is made fails to comply There are a number of ways to enforce the court’s judgment  Enforcement Bailiffs  execute the orders and judgments of a court Bailiffs are authorised to: – seize goods and chattels of the debtor at a value equivalent to the judgment debts plus the incidental expenses of the execution; and – recover lands/premises. Judgment creditor can apply for a writ of execution by the bailiffs There are different types of writs (e.g. writ of fieri facias)  Enforcement (Writ of fieri facias) When the judgment creditor cannot get the compensation from the defendant & a judgment debtor has moveable asserts  judgment creditor may seek the issue of a writ of fieri facias by the court Once the writ is issued, the court bailiff executes the writ by seizing the assets up to the amount endorsed on the writ + estimated execution costs Following the seizure, defendant has 5 working days to settle the debt plus estimated execution costs incurred If not  seized assets are then sold at a public auction – Assets that are liable to be sold, e.g.: land, bank notes, government bonds and company shares – Assets that are NOT liable to be sold, e.g.: wearing apparel and bedding not exceeding HK$10,000 in value in the whole  References Stefan Lo et al., The Hong Kong Legal System (2nd ed. 2020)  Teaching and Learning Questionnaire Please spend some time to complete the TLQ now You can access the TLQ system in the following ways: – Through a link in an invitation email FAQ: https://onlinesurvey.cityu.edu.hk/tlq/studentlan/FAQ – Through the course site on Canvas – by logging into the TLQ system directly https://onlinesurvey.cityu.edu.hk/ – by scanning the TLQ QR Code by smart phones or tablets.