HK Legal System Notes PDF

Summary

This document provides an overview of the Hong Kong legal system, focusing on the common law tradition. Topics include the Norman Conquest, the development of courts, and the concepts of writs, equity, and the rule of law. It also details different courts such as Court of Common Pleas, Court of King's Bench, Court of Exchequer, and Court of Chancery etc. It covers some key historic/legal events that shaped the legal system in England (then Hong Kong).

Full Transcript

**[Topic 1]** **Introduction to Common Law** ============================== **[Norman Conquest of England, 1066 ]** --------------------------------------------------- - Anglo-Saxons in England - Edward the Confessor (1042 -- 1066) - Childless - Died in January 1066 - 2 conf...

**[Topic 1]** **Introduction to Common Law** ============================== **[Norman Conquest of England, 1066 ]** --------------------------------------------------- - Anglo-Saxons in England - Edward the Confessor (1042 -- 1066) - Childless - Died in January 1066 - 2 conflicting claims on being the next king - Harold Godwinson - Duke William - What happened - William = crowned -\> Harlold invaded (Died) -\> William is crowed again **[Before Norman Conquest]** ---------------------------------------- - England - No unitary, national legal system - Oral customary rules - Local court, local customs - E.g. Informal public assemblies -\> if unable to reach a decision -\> require the accused party to snatch a stone from a bowl of boiling water -\> see if the wound healed within a prescribed period **After Norman Conquest** ------------------------- **[Introduced feudalism]** (social system in medieval Europe) - The King allocated land to his feudal vassals - In return: tenants in chief provided military support - Supply a certain number of knights - Later: some tenants in chief -\> granted partial of the land to others -\> intermediate tenants - Hierarchy - King - Tenants in Chief - Nobles - Intermediate Tenants - Knights - Tenants in Demesne - Peasants **[Did not bring an immediate end to Anglo Saxon Law]** - Jury - Neighbours that passed knowledge of the case - Knew the parties well - Later -\> evolved over time - No longer neighbours -\> but randomly picked strangers - Ordeals - Trial by physical test (most common) - With fire / water - Example: Wife -\>prove fidelity -\> pass thru fire - Trials by combat - Example - Example: Fight -\> winner = truth speaker - Practice of outlawry - Putting a person beyond the protection of the law - Outlaw = outside of the protection of the law - Therefore: anyone can kill the person without any legal consequence - Usually: dismiss ordeal / failed to show up in court - Writs - Orders requiring a person to appear before a court **[King's Court ]** ------------------------------- - **[Curia Regis]** - Definition - A term that describes a King's council and household (not a place) - Travel with the king (wherever he goes) - King seeks advice from them - Not for all the subject but for: - Held court -\> for tenants in chief - Tradition expressed in action - Usually: start with statutes (Rights) - But in England -\> start of with settlement of disputes (remedies) - Originally consists of procedural remedies rather than substantive rights - e.g. customary law used to settle disputes - Local court other than King's court - eg. feudal and manorial courts - Compete with other courts **[Strengthen Justice ]** ------------------------------------- - Justiciars (i.e., royal judges) -\> local cases - Went out to provincial towns and applied common law in cases - Given huge power - Follow precedents of the King or the Kings Court (a way to limit power) - The principle of stare decisis (rule of precedent) - A new problem of law came to be decided -\> a rule was formed -\> this rule would be followed subsequently by other judges (when deciding a similar matter) - However: doesn't mean rules will never be changed - Other courts or the King can over write the decision - Law become more predictable and certain - Called "common law of England" - Because: it was the law common to all parts of England (judges have to follow precedents) - Increased use of juries - Jury decides on the facts of the case, the judge determines the law **[Writ]** ---------------------- - Written order - Made by the English Monarch to a specific persons to take certain action - E.g.: Writ of King Edward to Westminster Abbey granting land at Petron 1062--1066 **[Change in system ]** - William the Conqueror - Form: Anglo-Saxon ---\> Latin - Covered an increasing range of royal commands and decisions - Henry II - Writ became available for purchase by private individuals to seek justice - King \> Chancellor \> Chancery - Authorize court to hear a case and secure the attendance of the defendant - Particular writs for particular types of repeated complaints (cases) - A specific writ for every complaint - Examples: - Writ of debt - Writ of covenant - Writ of right (i.e., breve de recto) - In common law - There is a right when there is a writ - Criticism - If the plaintiff asked for the wrong writ -\> he would not have justice - Need to purchase - Some may not be able to afford - Favour the rich **[Magma Carta, 1215]** ----------------------------------- - King John - Impose ridiculous rules - Many nobles tried to rebel -\> almost had a civil war - To appease -\> signed -\> Magna Carta - Written document: - Equality - Individual right - Everyone is subject to the same law - First legal document to write down rule of law **[Rule of Law / Men]** ----------------------------------- **[Rule of Law ]** - Every person is subject to the law - Not just about the government, but also about citizens - The law should be the same for everyone - Insist that the government is accountable (and not above the law) **[Rule of Men ]** - Opposing theory - Rulers are held above the law **[Inner Morality of Law]** --------------------------------------- Lon L. Fuller (1902 -- 1978) - Generality - Rules should apply to everyone (regardless of person or type..) - Publicity - Law must be accessible to the public - Cannot secret pass down a law - Non-retroactive - Cannot prohibiting behaviour in the past - Clarity - No ambiguity - Non-contradiction - Cannot prohibit a law that already exist - Workable - Cannot ask for the impossible - Constantly - Cannot keep changing the law - Because it would be difficult to keep up - Congruity - Pass laws that would be enforced - Enforcement of the law should be matched - Need these 8 elements -\> for rule of law to exist **[Early Statute Law]** ----------------------------------- - First 4 statues by Edward I, King of England in 1272 - 1307 - Statue of Westminster (1275) - Statue of Gloucester (1278) - Second State of Westminster (1285) - Statue of 1290 - Key takeaway: Common law also include statues (written laws) - First 2 = re written form of case law - Last 2 = new statute (not a case law) **[Royal Courts ]** ------------------------------- **[Court of Common Pleas]** - Responsible for disputes between private parties - Which did not involve a direct interest of the King - Questions of civil property and civil claims - Its judgments were subject to review by the Court of King's Bench - If the parties were not satisfied -\> can seek a review at the Court of King's Bench - Abolished in 1875 - Founded by King Henry II in 1178 - Sat in Westminster Hall - The King's Court followed the King, and the Court of Common Pleas sat in a fixed location **[Court of King's Bench]** - For criminal matters and for any case which concerned the monarchy - Founded around 1200 - Initially followed the King, but joined the Court of Common Pleas in Westminster Hall in 1318 - By 1676 -\> the highest court of common law in England and Wales - Responsible for Criminal, feudal, and civil cases - By the Judicature Act of 1873 -\> Absorbed into the High Court in 1875 **[Court of Exchequer ]** - After Norman Conquest: as a financial committee of King's Court - For the administration of the royal treasury - Responsible for fiscal and financial matters - Henry II - Separated - Collect King's revenue - Judge cases affecting revenue - 13th Century - The court proper and the treasury began to separate - Jurisdiction over common pleas increased - 1585 - Set up "Court of Exchequer Chamber" (≠ Court of Exchequer) - Amend errors of King's Bench - 1830 - Amalgamation (mixture); A single Court of Exchequer - Emerged as a court of appeal intermediate between the common-law courts and the House of Lords - 1875 - By the Judicature Act of 1873 -\> became the exchequer division of the High Court - 1880 - Combined with the Court of Common Pleas into the Queen\'s Bench **[Court if Chancery & Equity ]** --------------------------------------------- - Writ system imperfect - Many plaintiffs started to seek justice from the King - King delegated the task of hearing petitions to the chancellor - Early chancellors were clergymen - In charge of selling writs to people - Operated as "keepers of king's conscience" - Chancellors -\> developed a body of rules known as Equity **[Equity]** ------------------------ - Rules created to mitigate the strictness of common law - Common law remedies are available as of right - While remedies in equity are discretionary - Developed in the Court of Chancery - According to principles of fairness and justice - The trial was fast and informal = flexible - Previously = very flexible - ![](media/image2.png)Later = must follow the rule of precedent **[Common Law vs Equity ]** --------------------------------------- - Common law -\> deficiency of remedy - Typical remedy: damages (compensation) - Equity - Provides - Remedy where common law fails to do so - More suitable remedy than common law - Examples: - Specific performance - Order to act a certain way - Injunction - Prohibit action - Recession - Cancel a contract (ie. contracting parties suffer from misrepresentation / duress) - Rectification - Mend a contract content - [Case: Attorney General v Blake (2000) ] - 1944 to 1961 - Member of Secret Intelligence Service (MI6) - Signed a declaration to disclose no info about his work (even after work) - In 1951 - Blake joined the Soviet Union -\> Soviet agent - In 1961 - Blake was sent to jail - In 1966 - Blake escaped -\> went back to the Soviet Union - Blake wrote a book about his work - In 1989 - Blake received a publishing contract - He received advanced payments and was entitled to more - Later - British government -\> sued Blake - Question: Blake breached a contract -\> Could he keep the profits gained and future profits - If it was under purely common law - Court could only allow remedy of damages - Based on how much the plaintiff suffered - MI6 did not receive any harm -\> even if u say their is harm done -\> cannot calculate - Equity: breach of Contract - Creation of Account of Profit - Different from traditional damage - Now: based on how much the defendant gained **[Maxims of Equity ]** ----------------------------------- - Basic principles that govern the way which equity operates - Not independent of one another and often overlaps - Reflecting and represent fundamental moral ideas that lie at the heart of equity - Developed by the Court of Chancery and other courts that administer equity jurisdiction - Example - Equity will not suffer a wrong to be without a remedy - Where there is a right there is a remedy - Ashby v White (1703) - Facts - By the actions of a public officer, Ashby was precluded (prevented from happening) from being able rot exercise his right to vote - Ashby sued to recover the injuries he suffered - Issue - Whether one party may recover damages when one's civil rights is hindered by the action of another - Under common law - The person Ashby wanted to vote for -\> won (no difference if he voted or not) - No loss = useless - Held - A plaintiff ought to be allowed to recover -\> because the right to vote is a common law right - Right to vote -\> must have a remedy - Maxim: where there is a right there is a remedy **[Topic 2]** **Common law vs Civil law** =========================== **[The Different Meaning of Common Law ]** ------------------------------------------------------ - John Forrest Dillon (1831 -- 1914) from the US **[Historic Background ]** -------------------------------------- [ **Code of Hammurabi** ] - One of the oldest and most complete set of codified laws - Proclaimed by. Hammurabi - 6th king in the Babylonian dynasty - Reigned from: 1792 - 1750 BC - Ruled in central Mesopotamian (prevent Iraq) - Written in structure - if.... then.... - Quite harsh - If any one is committing robbery -\> shall be put to death - Seems to be case law **[Origin of Civil Law ]** - In all origin -\> leads to Rome - Jus civile - ![](media/image4.png)The civil law of the Roman Republic and Roman Empire - Politics of Ancient Rome **[Roman Republic (509 -- 27 BC)]** ----------------------------------------------- - Most law were beneficial to the nobles - Citizens were not happy - To appease the public - Appointed a commission of 10 men (Decemviri) to draft a code of law binding on all Romans - Aimed to better represent the interests of lower-ranked people - And reduce the undue influence on Roman law of the higher-ranked people - Enforced by two magistrates - A compilation of numerous statues -\> filled ten bronze tablets - Lower rank Romans were still unimpressed - Later: added 2 bronze tablets - 10 + 2 Bronze tablet = The Twelve Tables (450 BC) - To resolve disputes between higher-ranked and lower-ranked Romans - A new approach to law - Written laws passed by the government - All citizens might be treated equally before these laws **[Jurists: ]** - Upper classes - Interested in the law - Not government officials; not judges - Provided counsel about the law as a public service - Free of charge (\~pro bono service) - To gain influence - Gain popularity - Means a "legal expert" - Gained prominence within the legal system **[Roman Empire (27 BC -- AD 395)]** ------------------------------------------------ - Roman republic -transition to-\> Roman Empire - Expansion of Roman Empire - More trade & people - Created the need for a private law regime - The rise of Roman jurists - Civil law = (Roman) citizen law **[Types of Civil Judges ]** ---------------------------------------- Judiciary was nonprofessional 1. **[Praetor (i.e. Magistrate)]** - Elected for a 1-year term - Conduct pre-trial hearing - Define the issues of the controversy - Praetor's edicts - Publish edict = law he plans to implement that year - Annual public proclamation to state the principles by which the praetor intended to administer his office - The primary source of private law - Control remedies available to litigants 2. **[Judex (i.e. judge for the trial)]** - Selected on an ad hoc(for this situation) basis by the litigants for the purpose of presiding over their trial - Given authority by the praetor to decide only that case (only 1 case) - Roma back then: praetor (pre-trial), judex (trial) -\> currently: judge hear both 3. **[Jurist ]** - Both praetor and judex turned to the jurists for advice - Jurist = were the legal experts back then - Assisted the praetor in drafting the Edict - Essentially shaped the law - Important for the development of jus gentium - i.e., Equity law of Rome - Different from the Equity Law of England - Applying to cases between foreigners and Roman citizen - Prepared responsa for praetors and judices - A document - Responses to specific questions of law - Important for the development of a comprehensive jurisprudence (the study of law / a legal system) **[Value of Judges Decisions ]** -------------------------------------------- - Lack of regard for the value of decisions in individual cases - Due to: - Most of them being lay people (non-professionals) - Could not develop legal principles through resolving various cases - Only for a particular case or a year - Discontinuity of litigation - Split in trail procedure: predator -\> judex - Elevated the importance of the jurists and their written opinions **[Treatise ]** --------------------------- Predators got lazy - At first issue: - No other reference -\> need to create a lot - Thus: Issued a new Edict annually - Later: - Simply add some changes and additions to Edict issued last year - Very lengthy - Uneven texture and content - Such practice turned to an advantage - Copying from last year -\> stability - Came to an end around the reign of Emperor Hadrian - Juris -\> lost a part of their jobs -\> more time top write treatise (ie. scholarly legal publication) **[Patented Jurists ]** ----------------------------------- - Certain jurists plated by Caesar Augustus - Singled out for recognition - Patented Jurists options = more influential - Acquired the power of rule making - Binding on the emperor - Assumed the role of imperial adviser **[Institutes ]** ----------------------------- Gaius (a jurist of the Roman Empire) - Published the institute in the 2nd century - Extensive collection of legal principles and rules of private law - Analogized to modern "hornbooks" - Contributed significantly to the evolution of written law of Rome **[Corpus Juris Civilis = "Body of Civil Law"]** ------------------------------------------------------------ - The institute was too long -\> refinement of the institute and others - There were many other prolific jurists between 1st century BC and middle of 3rd century AD - E.g., Ulpian, Papinian and Paul - AD 529 -- 534: - Justinian, Eastern emperor - Ordered to reduce these manifold texts to systematic codification -- Corpus Juris Civilis, comprising the: - Gaius's Institutes - Digest (writings of classical jurists) - Codex (early imperial legislation) - Novellae (Justinian's legislation) - Corpus Juris Civilis became the essential building block for the civil law system **[Europe after Rome ]** ------------------------------------ - Over 600 years after the fall of Western Roman Empire - Justinian's codification remained in force in parts of Western Europe - A revival in the study of Roman Law - More universities started to teach Roman law - University of Bologna - 1st university established in Western Europe (\~AD 1088) - Taught both roman law and canon law - Fun fact: Bachelor of Laws (LLB) ; Master of Laws (LLM) - Roman law was re-interpreted and modified to suit the requirements of the time - More scholarly work -\> not only present 1 new point but also include opinions and improvement - 18th century: called for more concise codes - Later replaced by other codes - E.g. France in 1804: Napoleonic Code enacted - Exported to colonies - E.g. Germany in 1900: Bürgerliches Gesetzbuch (BGB) (i.e., Civil Code) - Influenced many countries (e.g., China, Japan, Greece) **[Common Law vs Civil law ]** ------------------------------------------ **[Types ]** - Common Law - E.g., England, former British colonies, the United States, and most of Canada - French Civil Law - E.g., Belgium and Luxembourg, the Canadian province of Quebec, Italy, Spain, and their former colonies - German Civil Law - E.g., Austria, Switzerland, Portugal, Greece, Turkey, Japan, South Korea, and Taiwan - Scandinavian Civil Law - E.g., Sweden, Denmark, Norway, and Iceland - Chinese (Civil) Law - Civil law + socialist law **[Difference ]** 1. **Codification** - Common law - Generally un-codified - Scattered statutes - No comprehensive compilation of legal rules - Relies on precedents - Documented in yearbooks and reports - Civil law - Codified - More comprehensive, continuously updated legal codes - Substantive law: what acts are illegal - Procedural law: how to determine whether a particular action constitutes an illegal act - Penal law: what penalties 2. **Building blocks** - Common law - Building blocks: Cases - Focus on what judges say - More pragmatic (dealing with things realistically) - Less theoretical - Civil law - Building blocks: texts - Focus on what the codes declare - Less pragmatic - More theoretical 3. **Court decisions** - Common law - Doctrine of precedent - Cases with substantially similar facts - Higher courts decisions binding on lower courts - Constancy, predictability and objectivity - Civil law - No Doctrine of Precedent - Judicial decision does no accord importance - Corpus juris civilis: decisions should be renewed in accordance, not wth examples, but with the law - In practice - Seldom differ -\> want a promotion -\> require upper court for a raise or promotion 4. **Role of judges & use of jury** - Common law - Adversarial system - Judges act like "moderator" - Jury decide facts of the case - Judge determines the law - Which precedent to use - Judges have an enormous role in shaping the (common) law - Civil law - Judges act like "investigators" - Judges establish the facts of the case and apply the law - No jury - Judge's decision is less important in shaping the (civil) law 5. **Role of lawyers** - Common law - Judges serve as a moderator - Need to present to judge, and sometimes the jury - Examine witnesses - Judges have greater flexibility on deciding remedy - Common law lawyers play a central role in litigation - Civil law - Judges act as investigators - Judges take the lead in proceedings (e.g. bring charges, establish fact through witness examination) - Still represent the interests of their clients - Oral argument and in-court presentations less important - Civil lawyers play a less central role in litigation 6. **Role of legal scholarships** - Need to identify problems and impact of the law -proposal-\> improve - Common law - Case law - Statutes - Civil - Statutes **[Other Laws ]** ----------------------------- **[Civil Law ]** - French Civil Law - E.g., Belgium and Luxembourg, the Canadian province of Quebec, Italy, Spain, and their former colonies - German Civil Law - E.g., Austria, Switzerland, Portugal, Greece, Turkey, Japan, South Korea, and Taiwan - Scandinavian Civil Law - E.g., Sweden, Denmark, Norway, and Iceland - Chinese (Civil) Law **[Common Law ]** - E.g., England, former British colonies, the United States, and most of Canada **[Religious law (eg. Muslim Law)]** - Islam -- originated in Saudi Arabia in 7th century CE - Muslim is an adherent of Islam - The 2nd largest religion in the world - Muslim Law / Islamic Law - Known to be originated from the divine (i.e., not man-made) - Submission to the will of the one god, Allah - Traditional Islamic law: Sharia (i.e., the way) - Originated from Allah -- Derived from Prophet Mohammed's principles - The holy book of Islam: Quran - Prohibit consumption of pork - "He has only forbidden you what dies of itself, and blood, and flesh of swine, and that over which any other (name) than (that of) Allah has been invoked; but whoever is driven to necessity, not desiring, nor exceeding the limit, no sin shall be upon him; surely Allah is Forgiving, Merciful." --- Qurʼan, Sura 2 (Al-Baqara), ayat 173 **[Customary Law ]** - Several African countries, India, mainland China, and Hong Kong - 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 than men) - Example (Customary inheritance law) - The oldest son inherits the control of the family property, and makes the decisions about the property. The wife does not inherit the family property, although she may use it. - Used: in several African countries, India, mainland China, and Hong Kong - Important in mixed legal system **[Mixed Legal System]** - South Africa - Dutch jurists drew on Roman Law in their writing -\> Roman-Dutch Law - Roman-Dutch Law exported to 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 - "Like a jewel in brooch, the Roman-Dutch law in South Africa today glitters in a setting that was made in England. Even if it were true (which is not) that the whole of South African private law and criminal law had remained pure Roman-Dutch law, the South African legal system as a whole would still be a hybrid one, in which civil and common law elements jostle with each other **[Topic 3]** **Hong Kong Legal System** ========================== **[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) - British government sent Captain Charles Elliot to demand - Restoration of impounded opium - Security for British traders - Jan 20, 1841 - Payment of debts to British merchants - Captain Elliot unilaterally announced Convention of Chuenpi (穿鼻草约) **[Captain Elliot Proclamation ]** ---------------------------------------------- - Jan 26, 1841 - Captain Elliot declared British sovereignty over HK - Early Feb - Captain Elliot proclaimed - "the natives of the Island of Hong Kong and all natives of China thereto resorting, shall be governed according to the laws and customs of China, every description of torture excepted." - Binary legal system in HK - Previous laws & customs = Chinese - British law = non-Chinese - British gov soon recanted Elliot's proclamation on the basis that Elliot had no authority - Replaced Elliot by Sir Henry Pottinger **[Treaty of Nanking ]** ------------------------------------ **[Timeline ]** - 1842 - Treaty of Nanking - Hong Kong Island - 1860 - Treaty of Beijing - Kowloon - 1898 - Second Convention of Peking - New Territories **[Details ]** - Picked HK for its geographical location -\> Victoria harbour -\> ships = merchant - British law now applies to everyone - Unless it contradicts with local customs -\> then the local customs prevail - Article III - 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 (exclusive right bestowed by a government or state and invested in an individual or group) - Allowed laws to be created in Hong Kong 1. **[Hong Kong Letters Patent (1843) ]** - Outlined constitutional structure - Conferred (grant) powers upon the governor - Made provision for-\> the assistant of the Executive Council and Legislative Council - Appointed Sir Henry Pottinger as the first governor of Hong Kong 2. **[Hong Kong Royal Instructions (1843)]** - Rules on composition of: Executive and Legislative Council - Legislative procedures (law making process) **[Opening of Criminal Court ]** -------------------------------------------- - 4 March 1844 - In a temporary building near Government House - Judges: - Governor Sir Henry Pottinger - "I wish to God my share of the investigations on which we are about to enter had fallen into more qualified hands" - Major General D'Aguilar - Not law qualified - Grand jury - A few residents were called and sworn in as a Grand Jury (On the same day) - Importance - First court held in China for trial by Jury **[First Case: ]** - Facts - A Manila seaman was accused for murdering the second mate on the high seas - No lawyer or translator for the defendant - The jury returned a verdict of willful murder against the defendant - Sentence of death was passed - Very unjust - No translator or lawyer - During the trail the major general left -\> decided solely by Sir Pottinger **[First Attorney General and Chief Justice ]** ----------------------------------------------------------- **[First Attorney General of Hong Kong]** - Mr. Paul Sterling, Barrister-at-Law - Appointed in April 1844 - 1,500 pounds per year - Arrived on 28 July 1844 **[First Chief Justice ]** - John Hulme, Barrister-at-Law - Many not interested because of climate - Humidity and lack of development at the time - Offered 2,500 pounds per year -\> At least 7 barristers refused - Offered 3,500 pounds per year - Arrived on 7 May 1844 **[Supreme Court Ordinance (1844)]** ------------------------------------------------ - Was established due to the constitutional document issued by the queen - Hong Kong Letters Patent - Hong Kong Royal Instructions **[Date: 21st August 1844]** - Established the Supreme Court of Hong Kong - A building at the junction of Wyndham and Wellington Streets - Sir Henry Pottinger & John Hulme drafted the procedures of the court - 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]** - Only English laws exiting before the institution of a separate Hong Kong legislature in 1843 would automatically apply in Hong Kong - Because of the constitutional document issued by the queen and because HK could make their own law **[Amended in 1873]** - English laws would not be applicable in Hong Kong where they had been amended by local legislation **[First Case in Supreme Court ]** ---------------------------------------------- **[1st Oct 1844 ]** - Supreme Court opened - Mr. Paul Sterling (i.e., the AG) & Mr. H. C. Sirr - Attorneys required to take the oaths of: - Allegiance (promise to be loyal to the British Monarch) - Good behaviour - Supremacy (the King is the only Supreme Head in Earth of the Church of England) - Abjuration (oath renouncing all rights of descendants of a pretender to the Crown) **[2nd Oct 1844]** - First case - Trial by jury - Abduction - Husband and wife induced two women to enter their boat -\> brought to Canton -\> sold the two women for 90 dollar each - Friends of the two women went to Canton & paid 220 dollar for their ransom - The husband and wife -\> 18 months imprisonment **[Poisoned Bread Case (1857)]** -------------------------------------------- **[15th Jan 1857]** - An attempt to poison hundreds of foreign residents in HK - Including the wife of the governor and high-ranking officials - Arsenic found in the bread made by the principal bakery in HK - Owner of the bakery: Cheong Ah-Lum (non resident of HK) - Settled many outstanding accounts the day before - Departed to Macau with his family on the day of the incident - Cheong was arrested in Macao and sent back to HK for trial **[Cheong's Lawyer]** - Cheong was being set up - Went to Macau for vacation - Planned to return after sending his family back to Hong Kong - Cheong's children also ate the poisoned bread and got sick as well **[Attorney General (prosecutor of this case)]** - Knew the proof was inadequate - But under huge pressure to convict Cheong - "Better to hang the wrong men than confess that British sagacity and activity have failed to discover the real criminals." **[Matter of Fact]** Whether Cheong had mixed the poison or ordered it to be mixed -\> a matter of fact -\> decided by the jury - The attorney general did not hav the final say - Up to the jury to decide - Judge guided the jury - Decision - "I, in common with the Attorney-General, am desirous that justice should be done on the perpetrator of this crime, but hanging the wrong man will not further the ends of justice." **[Key Takeaway]** - This decision shows the importance of fair trial, benefit of the doubt and rule of law - Jury: A verdict of NOT guilty by a majority of five to one - Even with conflicting interest (some of the jury were victims) -\> still gave Cheong benefit of the doubt (upheld justice) - Nowadays: people with conflict of interest would not be jury **[Expansion of British Hong Kong ]** ------------------------------------------------- - **** - Treaty of Nanking - Hong Kong Island - **** - Treaty of Beijing - Kowloon - **** - Second Convention of Peking - New Territories **[Application of English Law Ordinance (1966)]** ------------------------------------------------------------- **[Supreme Court Ordinance]** - Issued: 1844 - Amended: 1845, 1846, 1873 **[Used 1843 as a cut off date ]** - Before 1843 - English Law -\> applicable in HK immediately - Did not draw distinction between statutory and common law English rules - Thus -\> passed new law = Application of English Law Ordinance (1966) **[Application of English Law Ordinance (1966)]** Section 3 - English rules of common law and equity continue to operate in HK (irrespective of the date of their formation) - So far as they are applicable to the circumstances of Hong Kong or its habitants - Subject to any modifications as such circumstances may require - Subject to any amendment thereof (whenever made) by - Any Order in Council which applies to Hong Kong - Any Act which applies to Hong Kong - Any ordinance - Specific to judge made rules Section 4 - Acts of Parliament (a kind of English statutory rules) were to be in force in Hong Kong only if - Contained in the "schedule" (which contained only pre-1843 legislation) - Thus: not all pre-1843 English law would be applicable - only those in the schedule - Where they were expressly or implicitly applicable to Hong Kong - Specifically stated it is applicable to HK - Specific to statutory rules **[1997 Deadline ]** -------------------------------- - Treaty of Nanking (1842) -\> Hong Kong Island -\> in perpetuity (forever) - Treaty of Beijing (1860) -\> Kowloon -\> in perpetuity - Second Convention of Peking (1898) -\> New Territories -\> 99 year lease - i.e. last until 30 June 1997 Thus: China and Britain negotiated on the future of Hong Kong **[Sino British Joint Declaration ]** ------------------------------------------------- On the question of Hong Kong - **[Signed]** - Dec 19, 1984 - **[Rectified]** - May 27, 1985 - By the Chinese and British Government - **[Registered]** - June 12, 1985 - At the United Nations by both governments **[Consists of several documents ]** 1. The Joint Declaration (itself) 2. Annex I - The Chinese government established its basic policies towards Hong Kong 3. Annex II - Sets out the terms of reference and the working arrangements for the Sino-British Joint Liaison Group (JLG) - Which operates until Jan 1, 2000 4. Annex III - Provides for the protection of land rights and land leases granted by the HK government - Establishes the Land Commission - Which operates until June 30, 1997 5. An exchange of Memoranda - On the Status of British Dependant Territories Citizens **[Key features of the Joint Declaration]** 1. **Handover Date**: Britain will transfer Hong Kong to China on July 1, 1997. 2. **British Administration**: Britain will continue to govern Hong Kong until then. 3. **New Status**: After the handover, Hong Kong will be a Special Administrative Region (SAR) of China. 4. **Local Autonomy**: The HKSAR will have its own government and a high degree of autonomy, except in foreign and defense matters. 5. **Government Powers**: It will have executive, legislative, and judicial powers. 6. **Existing Laws**: Current laws will mostly stay the same. 7. **Local Government**: The HKSAR government will be made up of local residents. 8. **Foreign Workers**: Foreign workers in the Hong Kong government can keep their jobs. 9. **Stable System**: Hong Kong's social and economic systems will remain unchanged. 10. **Legal Protections**: Rights and property will be protected by law. 11. **Free Port**: Hong Kong will remain a free port with separate customs. 12. **Financial Centre**: It will continue as an international financial center with free capital flow. 13. **Currency**: The Hong Kong dollar will still be used and convertible. 14. **Independent Finances**: The HKSAR will manage its own finances. 15. **Economic Ties**: It can build economic relationships with the UK and other countries. 16. **Cultural Relations**: The HKSAR can develop cultural ties independently as \"Hong Kong, China.\" 17. **Public Order**: Maintaining order will be the HKSAR\'s responsibility. 18. **Basic Law**: The governing rules will be set in a Basic Law and will stay the same for 50 years, until 2047 a. One country two system b. Handover didn't change immediately -because-\> abrupt change = lowers predictability & stability -\> may loose investors and cause conflict **[Annex I ]** -------------------------- I. Constitution II. Legal System III. Judicial System IV. Public Service V. Finance VI. Economic System VII. Monetary System VIII. Shipping IX. Civil Aviation X. Education XI. Foreign Affairs XII. Defence XIII. Basic Rights and Freedoms XIV. Rights of Abode, Travel and Immigration **[Annex I & Establishment of HKSAR]** - The Constitution of the People\'s Republic of China - Article 31 - 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 - After the resumption of the exercise of sovereignty over Hong Kong on 1 July 1997 (handover) - Establish the Hong Kong Special Administrative Region of the People\'s Republic of China - This relates to jurisprudence (legal system) ### **Jurisprudence** H.L.A. Hart (1907---1992) A. **[Primary Rules ]** - Imposes duties - Eg. Criminal law / Tort law - Criminal law - Conduct (outline what you can / cannot do) - Punishment B. **[Secondary Rules ]** - Power conferring (grant / bestow upon) - Allows individuals to structure their legal relations with others - Eg. Contract law - Remedies (although: provides sanction) - Mostly on: how to make contracts - Regulating law making procedures **[A legal system must have both primary and secondary rules ]** Necessary condition not a sufficient condition - Meaning - A legal system must have these qualities but not that these qualities equal a legal system - Reasoning - Why a system with only primary rules does NOT work? 1. Uncertainty about what the rules are - Secondary rules give detail / definition - **Rule of recognition** - Solve uncertainty problem - Example - In England, what the Queen in Parliament enacts is law - In HK, PRC Constitution provides the legal validity for the Basic Law and other laws - Legal validity = recognition - Explains how rules are unified (i.e., regress of legal validity) - At the top of the chain of validity - Hierarchy (top -give validity-\> to lower) - PRC Constitution (ie Rule of Recognition) - Basic Law (granted by: Article 31) - Legislative Council (granted power by the Basic Law to create:) - Ordinances 2. A primary rule only system is static - **Rules of Change** - Solves static problem - E.g. In HK, the Legislative Council could pass new laws or amend the current laws in accordance with some procedures 3. Inefficiency in determining if rules were violated - **Rule of Adjudication** - Solve efficiency problem - Eg. Civil procedures / criminal procedures **[Annex I ]** -------------------------- **[The Basic Law ]** The National People\'s Congress of the People\'s Republic of China - Shall enact and promulgate -\> Basic Law of the HKSAR of the PRC - In accordance with the Constitution of the PRC - Stipulating (specify) that after the establishment of the HKSAR: 1. The socialist system and socialist policies shall not be practised in the Hong Kong Special Administrative Region 2. And that Hong Kong\'s previous capitalist system and life-style shall remain unchanged for 50 years **[Laws of the SAR]** - The laws of the HKSAR shall be - The Basic Law - The laws previously in force in Hong Kong - The laws enacted by the HKSAR **[Laws Previously in Force ]** **Joint Declaration** - HKSAR = will be vested with executive, legislative and independent judicial power, including that of final adjudication - The laws currently in force in Hong Kong will remain basically unchanged **Annex I** - After the establishment of the HKSAR - 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 - Except: any that contravene the Basic Law and subject to any amendment by the HKSAR legislature - The courts shall decide cases in accordance with - The laws of the HKSAR and may refer to precedents in other common law jurisdictions **[Annex II]** -------------------------- **[Joint Liaison Group ]** - In order to ensure a smooth transfer of government in 1997 - The Government of the: UK and PRC have agreed - To continue their discussions in a friendly spirit - 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 - Thus: both gov agreed to set up a Joint Liaison Group - 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 be agreed by the two sides - Matters on which there is disagreement in the Joint Liaison Group shall be referred to the two Governments for solution through consultations - 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: - 18 in HK - 15 in London - 14 in Beijing - Established specialist 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 - Localization of UK legislation in many areas of law - E.g., merchant shipping, civil aviation, copyright.. - Bilateral agreements between HK and various countries remain in force after 30 June 1997 - E.g., investment promotion and protection / mutual legal assistance in criminal matters - HKSAR should be deemed to be a separate contracting party to the World Trade Organization - HKSAR should continue to participate in various international organizations after 30 June 1997 - E.g., World Health Organization - Some travel and ID documents would continue to be valid **[Annex III]** --------------------------- **[Land Commission Establishment :1985 ]** - **Leases expiring before June 30, 1997** - Can be extended at the lessee\'s request until June 30, 2047 - **Leases expiring after June 30, 1997** - Will follow the HKSAR land laws and policies - **New leases (from the start of the Joint Declaration until June 30, 1997)** - The British HK Government can grant leases expiring by June 30, 2047 - **Land transaction income**: Premium income from these transactions will be shared equally with the future HKSAR Government after production costs are deducted. - **Old schedule lots and rural holdings**: - If held by specific individuals on June 30, 1984, or granted to their male descendants, the rent will remain unchanged as long as they or their lawful male successors hold the property **[Land Commission Dissolvement: June 30, 1997]** - Consultations on Annex III for land leases - Held 35 formal meetings in Hong Kong - Agreements reached on - Legal documents for different land transactions - Legislative extension of New Territories leases - Principles for special purpose leases - Land Agreements - 1994: Land granted for Chek Lap Kok airport and railway. - 1995: Land granted for River Trade Terminal in Tuen Mun. - 1996: Land granted for Container Terminal No. 9 **[Handover on July 1, 1997 ]** ------------------------------------------- **[Reunification Ordinance (First Law passed by the HKSAR gov)]** - Sovereignty Transfer - Midnight on July 1, 1997 - Hong Kong\'s sovereignty was transferred to the PRC - First Meeting - At 2:45 AM on July 1, 1997 - The Provisional Legislative Council met for the first time at the Hong Kong Convention and Exhibition Center - The Hong Kong Reunification Ordinance was enacted - Re-appointed judges and confirmed the re-establishment of courts - Ensured continuity of legal proceedings and public service - Allowed barristers, solicitors, and notaries to continue their practices - Ratified (make agreements official) bills passed before July 1, 1997 - Incorporated adaptation principles laid down by the National People's Congress - Bill Signing - On the same day, Chief Executive Tung Chee-hwa signed the bill - Making it official **[Topic 4 ]** **Source of Law** ================= **[1. The Basic Law ]** ----------------------------------- ### **Joint Declaration Annex I & The Basic Law** **[One Country, Two Systems]** - The National People\'s Congress will make a Basic Law for Hong Kong - After becoming a Special Administrative Region - Hong Kong will not use socialist systems or policies - Its capitalist system and lifestyle will stay the same for 50 years. ### **Basic Law** - **1985**: Formation of two committees - **Basic Law Drafting Committee**: Created the Basic Law - 23 members from Hong Kong - 36 members from the Mainland - **Basic Law Consultative Committee**: Gathered public opinions - All members were from Hong Kong - **April 1988**: First draft published, followed by the first public consultation - **February 1989**: Second draft published, followed by the second public consultation - **April 4, 1990**: The Basic Law was adopted by the National People's Congress - **July 1, 1997**: The Basic Law came into effect ### **Legal Validity** - **Chinese Constitution, Article 31** - The state can create special administrative regions as needed - The systems in these regions will be determined by laws made by the National People\'s Congress based on specific conditions ### **Overview** - A written (mini-)constitution composed of the rules and practices which set out the system of government for the HKSAR **[Consists of the following sections ]** - The body of the Basic Law (9 Chapters; 160 articles) - General Principles - Relationship with Central Authorities and the Hong Kong Special Administrative Region - Fundamental Rights and Duties of Residents - Political Structure - Economy - Education, Science, Culture, Sports, Religion, Labour and Social Services - External Affairs - Interpretation and Amendment - Supplementary Provisions - Annex I - Selection method for the Chief Executive - Annex II - Legislative Council formation and voting procedures - Annex III - National laws applicable in the HKSAR ### **Laws in Force in Hong Kong** - **Chapter II, Article 18**: - The laws in the Hong Kong Special Administrative Region include: - The Basic Law - Laws that were previously in force in Hong Kong - As described in Article 8 - Laws made by the HKSAR legislature - National laws generally do not apply in Hong Kong - Except those listed in Annex III - Which will be implemented locally - **Chapter I, Article 8**: - The previous laws in Hong Kong - Include - Common law - Equity rules - Ordinances - Subordinate legislation - Customary law - These laws will remain in effect - Unless they conflict with the basic law or are amended by the HKSAR legislature ### **Interpretation of the Basic Law** - Power to authoritatively interpret the meaning of the legal text - Vary in different jurisdiction - Common law system: courts - Mainland China: Standing Committee of the National People\'s Congress (NPCSC) = non judicial body - In HK: hybrid system - Chinese Government Structure - The Standing Committee of the National People\'s Congress has the authority to interpret the Basic Law - Also allow Hong Kong courts to interpret provisions of the Basic Law related to the Region\'s autonomy when handling cases - Hong Kong courts can also interpret other parts of the Basic Law - However - If a court needs to interpret provisions related to the Central People\'s Government or the relationship between the Central Authorities and Hong Kong - And this interpretation could affect the case outcome - The court must first seek guidance from the Standing Committee through the Court of Final Appeal before making a final, non-appealable judgment - The NPCSC has interpreted provisions in the Basic Law on five occasions - 1999 - Right of Abode in HK - Article 22(4), 24(2), 24(3) - 2004 - Election of the Chief Executive and Members of the Legislative Council - Article 7 of Annex I, Article 3 of Annex II - 2005 - The Length of Term of Office of a replacement Chief Executie v - Article 53 - 2011 - State Immunity - Article 13, 19 - 2016 - Oath taking for the Office - Article 104 **[NPCSC\'s Power to Interpret the Basic Law]** - The National People\'s Congress Standing Committee (NPCSC) can interpret any part of the Basic Law, whether or not a case is in court: - On its own initiative - Upon request from the Chief Executive of the HKSAR - Under articles 43 and 48(2) of the Basic Law - **2016 Oath-Taking Case** - The Court of Final Appeal (CFA) noted: - The NPCSC\'s authority to interpret the Basic Law comes from Article 67(4) of the PRC Constitution and is specified in Article 158(1) of the Basic Law - This interpretation is part of a different legal system than the common law and can clarify or supplement laws - Interpretations made by the NPCSC are binding on Hong Kong courts - These interpretations establish what the law has been since the Basic Law took effect on July 1, 1997 **[Amendment of the Basic Law ]** **[Chapter VIII, Article 159]** - The National People\'s Congress is responsible for amending the Basic Law - Amendment proposals can come from: - The Standing Committee of the National People\'s Congress - The State Council - The Hong Kong Special Administrative Region - Amendments cannot go against the established policies of the People\'s Republic of China regarding Hong Kong **[2. Legislation ]** --------------------------------- ### **Source of Law** **[Main sources of law in HK]** - Basic Law - Legislation: - Pre-1997 Legislation: - English laws - Hong Kong laws - Post-1997 Legislation - Common Law and Equity - Chinese Customary Law - National Laws of the PRC **[Definition]** - Legislation / Statute law - Law made by or under the authority of the legislature - Eg. Rules, regulations, by-laws, orders, notices, proclamations, instruments made under the authority of a primary legislation **[Context]** - England - Primary Legislation - Act (Crown + Parliament) =\> give rise to HK English Law Ordinance - Ordinance (Crown alone) - Secondary Legislation - Subordinate legislations - HK pre-1997 - Primary Legislation - Some English Statutes applied in HK due to - The Application of English Law Ordinance (1966) - Ordinance - Enacted by local legislature pursuant to Letter Patent - Secondary Legislation - Subordinate legislations - HK post-1997 - Primary Legislation - Ordinance - Enacted by legislative council - Secondary Legislation - Subordinate legislations ### **Application of English Law Ordinance (1966)** - **Supreme Court Ordinances (1844, 1845, 1846 & 1873)**: - Used 1843 as a cut-off date - Did not differentiate between statutory and common law English rules - **Application of English Law Ordinance (1966)**: - English common law and equity rules continue to apply in Hong Kong - Regardless of when they were created - Pre-1843 English Acts of Parliament only apply if listed in a specific schedule - Post-1843 English Acts apply only if they are specifically relevant to Hong Kong ### **Hong Kong Legislation Post-1997** - **NPCSC Decision (February 23, 1997)**: - Provisions in existing ordinances referring to English law can continue to apply until amended by the HKSAR - As long as they do not harm the sovereignty of the PRC or contradict the Basic Law - **Basic Law - Chapter II, Article 18**: - The laws in force in Hong Kong include: - The Basic Law itself - Laws previously in force as stated in Article 8 - Laws enacted by the HKSAR legislature - **Basic Law - Chapter I, Article 8**: - Previous laws in Hong Kong (including common law, equity rules, ordinances, subordinate legislation, and customary law) will remain in effect unless they conflict with the Basic Law or are amended by the HKSAR legislature. ### **Adoption of Pre-1997 English Legislation** - **Basic Law - Chapter I, Article 8** (reiterated): - Previous laws will stay in force unless they contradict the Basic Law or are amended by the HKSAR - **If Pre-1997 Legislation Conflicts with the Basic Law**: - It may be - Repealed - e.g., Application of English Law Ordinance (1966)) - Or amended then adopted **[3. Common Law and Equity ]** ------------------------------------------- **[Different Meanings of Common Law]** - **John Forrest Dillon (1831 -- 1914)**: - Differentiated between: - Common law and civil law - Common law and statute law - Common law and equity ### **Joint Declaration & Laws Previously in Force** - **Joint Declaration** - The HKSAR will have - Executive - Legislative - Independent judicial power - Including final adjudication - The laws currently in force in Hong Kong will largely remain unchanged - **Joint Declaration - Annex I** - Previous laws in Hong Kong (common law, equity rules, ordinances, subordinate legislation, and customary law) will be maintained - Unless they contradict the Basic Law or are amended by the HKSAR Legislature ### **Sources of Law in Hong Kong** - **Basic Law -- Chapter II, Article 18**: - Previous laws in Hong Kong (as stated in Article 8) and laws enacted by the HKSAR legislature will be in force. - **Basic Law -- Chapter I, Article 8**: - Previous laws will remain, including common law, equity rules, ordinances, subordinate legislation, and customary law, unless they conflict with the Basic Law or are amended. ### **Application of English Law Ordinance (1966)** - **Supreme Court Ordinances (1844-1873)**: - Used 1843 as a cut-off date and did not distinguish between statutory and common law rules - **Application of English Law Ordinance (1966)**: - English common law and equity rules continue to apply in Hong Kong, regardless of when they were established - Pre-1843 English Acts apply only if listed in a specific schedule - Post-1843 English Acts apply only if relevant to Hong Kong. ### **Common Law & Equity Not Frozen on July 1, 1997** - **Article 8 of the Basic Law**: - Common law continues as it was on June 30, 1997 - However, common law is not frozen: - It can develop and change through court decisions - [The Court of Final Appeal (CFA) can overturn previous English court decisions and its own past rulings] ### **Precedents from Other Jurisdictions** - **Basic Law -- Chapter IV, Article 84**: - HKSAR courts adjudicate cases based on local laws and may refer to precedents from other common law jurisdictions (these precedents are persuasive but not binding). - **Basic Law**: - Post-1997 English judicial statements do not have more status than those from other common law jurisdictions (e.g., *A Solicitor v The Law Society of HK*) - However: In Practice - Judges often give more weight to English court judgments, possibly because - These decisions are more relevant to issues in Hong Kong courts - Many Hong Kong judges have an Anglo-centric legal education **[4. Chinese Customary Law ]** ------------------------------------------- ### **Chinese Law and Custom After British Occupation** - After the British took control in the mid-19th century, some Chinese laws and customs remained, including: - [**Chinese Imperial Codes** and **Local Customary Law**] - Example 1 (Before 1971): - In 1957, while his first wife, Li Wanhua, was ill, Stanley Ho married Lan Qiongying as a second wife according to Qing Dynasty laws - Example 2 (Before 1995): - Without a will, land property of a deceased person would pass down through the male line **[Legislation Amendments ]** - **Marriage Reform Ordinance (1971)** - After 1971, men could no longer take concubines - **New Territories Land (Exemption) Ordinance** - Abolished the custom of passing property only through the male line ### **Sources of Law in Hong Kong** - **Basic Law -- Chapter II, Article 18**: - The laws in force in Hong Kong include: - The Basic Law - Laws previously in force as stated in Article 8 - Laws enacted by the HKSAR legislature - **Basic Law -- Chapter I, Article 8** - Laws previously in force in Hong Kong include: - Common law - Rules of equity - Ordinances - Subordinate legislation - Customary law ### **Chinese Customary Law** - **Article 8 of the Basic Law**: - Does not mention \"Chinese law and custom.\" - Excludes \"Chinese Imperial Codes\" from being applied in Hong Kong - **Customary Law as of June 30, 1997**: - Primarily affects family law and land in the New Territories - Very little traditional family law remains relevant today - **Current Relevance** - The most significant area of Chinese customary law today relates to land law in the New Territories, particularly concerning small houses **[5. National Laws of the PRC ]** ---------------------------------------------- ### **Basic Law -- Chapter II, Article 18:** - The laws in force in Hong Kong include: - The Basic Law - Laws previously in force as stated in Article 8 - Laws enacted by the HKSAR legislature **[National Laws ]** - Generally: do not apply in HK - Except for those listed in Annex III - These laws will be implemented locally through announcements or legislation - The SCNPC can add or remove laws from Annex III - After consulting with its Committee for the Basic Law and the HKSAR government - The laws in Annex III will only relate to defense, foreign affairs, and other matters outside the Region\'s autonomy - If the Standing Committee declares a state of war or an emergency - Due to turmoil in Hong Kong that threatens national unity or security - The Central People\'s Government can issue an order to apply relevant national laws in the Region ### **Annex III (National Laws Applicable in Hong Kong)** **[When the Basic Law Came into Effect]** - Resolution on the Capital, Calendar, National Anthem, and National Flag of the People\'s Republic of China - Resolution on the National Day of the People\'s Republic of China - Order on the National Emblem of the People\'s Republic of China (includes design, notes, and instructions). - Declaration on the Territorial Sea by the Government of the People\'s Republic of China. - Nationality Law of the People\'s Republic of China - Regulations concerning Diplomatic Privileges and Immunities **[Added on July 1, 1997]** - Law on the National Flag - Law on the National Emblem - Law on the Territorial Sea and Contiguous Zone - Law on the Garrisoning (station of troops) of the Hong Kong Special Administrative Region - Regulations concerning Consular Privileges and Immunities **[Added after July 1, 1997]** - Law on the Exclusive Economic Zone and the Continental Shelf - Law on the National Anthem - Law on Safeguarding National Security in the Hong Kong Special Administrative Region **[6. Interpretation of the Basic Law: Eg. The Right of Abode Case (1999) ]** ----------------------------------------------------------------------------------------- ### **Permit for Proceeding to Hong Kong and Macao** - **Before 1982**: Many mainland residents entered Hong Kong illegally - **1982 Onwards**: - Formal negotiations began, leading to the Sino-British Joint Declaration in 1984. - Both governments aimed to control immigration - Mainlanders needed a \"Permit for Proceeding to Hong Kong and Macao\" (one-way permit) - Quota set at 75 permits per day ### **Sino-British Joint Declaration (December 19, 1984)** **[Annex I, Paragraph 14: Right of Abode]** - Categories of people with the right of abode in Hong Kong include: - Chinese nationals born or residing in Hong Kong for 7 years or more - Other persons who have resided in Hong Kong for 7 years or more - Children under 21 born to these residents - Individuals who had the right of abode in Hong Kong before the HKSAR\'s establishment - **Passports (later became Article 24)**: - The Central People\'s Government authorized the HKSAR to issue passports to: - Chinese nationals with permanent identity cards - Other lawful residents in Hong Kong ### **August 10, 1996** **[Fourth Plenary Meeting of the Preparatory Committee ]** - Adopted opinions clarifying that \"persons of Chinese nationality born in Hong Kong\" refers to children born when at least one parent is legally settled in Hong Kong ### **Handover: July 1, 1997** **[Basic Law Article 24]** Defines Hong Kong residents, including both permanent and non-permanent residents. - Permanent residents include: - Chinese citizens born in Hong Kong or those residing for 7 years - Children of permanent residents born outside Hong Kong **[Immigration Ordinance Amendments]** - Restricted permanent residency for those born outside Hong Kong to those with a permanent resident parent - Following the handover, around 400 individuals entered without a one-way permit seeking residency, but the government refused ### **Amendment: July 9, 1997** **[Immigration (Amendment) (No 3) Ordinance ]** - Introduced the **Certificate of Entitlement (C of E)** scheme - Individuals born in the mainland to Hong Kong residents must obtain a C of E to establish permanent residency - Legislation applied retrospectively to affect those who entered between July 1 and July 9, 1997 **[Basic Law Article 22]** - Requires a one-way permit for entry into Hong Kong from other parts of China, with the number determined by the Central People\'s Government ### **Ng Ka Ling v Director of Immigration** - **Background** - Ng Ka Ling was born in the mainland - Her father was an HK permanent resident - Entered Hong Kong illegally on July 1, 1997 - Sought permanent residency - **Court Decision (January 1999)** - The Court of Final Appeal (CFA) ruled that Ng Ka Ling was a permanent resident - Clarified that \"people from other parts of China\" under Article 22 does not include children of HK residents ### **Request for Interpretation of the Basic Law** **[May 21, 1999]** - The Chief Executive requested the central government to interpret Article 24 of the Basic Law. ### **NPCSC's Interpretation** **[June 26, 1999]** - Clarified that \"persons of Chinese nationality born outside Hong Kong\" includes those born to residents at the time of their birth - This interpretation was based on legislative intent ### **After the Interpretation** **[Article 158(3)]** - Courts in Hong Kong must follow NPCSC interpretations - Judgments previously rendered will not be affected The NPCSC\'s interpretation did not retroactively affect Ng Ka Ling's permanent residency - Following the interpretation, the HK Legislative Council amended the Immigration Ordinance to align with the NPCSC's interpretation **[Topic 5A]** **The Court System** ==================== **[Courts ]** ------------------------- - **Settlement of Legal Disputes**: Resolve conflicts between parties. - **Determination of Rights and Liabilities**: Establish the rights and responsibilities of the parties involved. - **Criminal Justice**: Assess the guilt or innocence of individuals accused of crime **[Establishment of Courts in Hong Kong]** ------------------------------------------------------ - **[Basic Law]** - **[Article 80]** - The judiciary of the Hong Kong Special Administrative Region (HKSAR) exercises judicial power at all levels - **[Article 81]** - Establishment of - The Court of Final Appeal - The High Court (comprising the Court of Appeal and the Court of First Instance) - District courts, magistrates\' courts, and other special courts - The previous judicial system in Hong Kong is maintained, with adjustments for the Court of Final Appeal **[Functions of Courts / Judicial Power]** ------------------------------------------------------ **Adjudication of Cases** - **Civil Cases**: Determine rights and liabilities, making orders such as: - Damages - Injunctions - Specific performance - **Criminal Cases**: Assess violations of criminal law and impose sentences like: - Fines - Imprisonment **Legal Clarity**: Declare what the law is and evaluate if legislation or executive actions contravene the Basic Law. **[Jurisdiction]** ------------------------------ - **Definitions** - **Jurisdiction**: The scope of law or type of dispute a court is authorized to hear and decide - **Types of Jurisdiction** - **Original Jurisdiction** - The court hears a matter for the first time (first instance) - **Appellate Jurisdiction** - The court hears appeals from decisions of other courts, reviewing the earlier decision - **Powers of a Court** - Include the ability to grant remedies or issue orders. - **Geographical Jurisdiction** - Refers to the area where a court can exercise its authority **[Hong Kong's Court System Post-July 1, 1997]** ------------------------------------------------------------ **[Basic Law Article 81]** - The existing judicial system in Hong Kong is preserved - Changes only occur after the establishment of the Court of Final Appeal for the Hong Kong Special Administrative Region (HKSAR) **[HK Court System Prior July 1, 1997]** **[HK Court System After July 1, 1997]** **[Types of Courts ]** ---------------------------------- **[Superior Courts]** - **Characteristics**: - Possess inherent powers (not ultimate power) - Example: Can order security for costs in legal actions, even if not explicitly stated in statutes - Have supervisory jurisdiction, allowing them to review decisions made by lower courts. - Example: Writ of certiorari (a type of court order). - Courts - Court of Final Appeal - Court of Appeal - Court of First Instance - Competition Tribunal **[Inferior Courts]** - Courts - **District Court** - **Magistrates' Courts** - **Small Claims Tribunal** - **Lands Tribunal** - **Labor Tribunal** **[A) Magistrate Courts ]** --------------------------------------- **[Locations]** - Tuen Mun - Sha Tin - Kwun Tong - Eastern - Fanling - Kowloon City - West Kowloon **[Key Features]** - **Commencement of Criminal Proceedings** - All criminal cases begin in the Magistrates\' Court. - **Judge-Alone Proceedings** - Cases are decided by a magistrate without a jury ### **Types of Magistrates** - **Special Magistrates** - Have limited jurisdiction and sentencing powers - Maximum penalties - HKD 50,000 fine - 6 months' imprisonment - **Permanent Magistrates** - Have broader jurisdiction and sentencing authority - Maximum penalties - HKD 100,000 fine - 2 years' imprisonment (typically) - **Juvenile Court** - Handles criminal charges against children under 16 (except for homicide) - Issues protection orders ### **Types of Offences** - **Summary Offences** - Less serious offences - Typically punishable by up to 2 years' imprisonment in the Magistrates\' Court - **Indictable Offences** - More serious offences - Can be tried in the Magistrates\' Court, District Court, or Court of First Instance ### **Venue Selection** **Likely Sentence** - Prosecutors in Hong Kong choose the trial venue based on the \"likely\" sentence rather than the \"maximum\" sentence **Case Example (2018 Rhinos Case)** - Involved illegal smuggling of rhino horn and ivory, punishable by up to HKD 10 million fine and 10 years of imprisonment - Prosecutors selected the Magistrates\' Court due to the likely sentence of up to 2 years - The defendant was ultimately sentenced to 2 months in prison by Magistrate Edward Wong Ching-yu - Had the case been moved to the District Court, sentencing could have been up to 7 years **[B) District Courts ]** ------------------------------------- **[Civil Jurisdiction]** ### **1. Contract, Quasi-Contract, and Tort** - Claims **HKD 75,000** - HKD **3 million** - **HKD 75,000 or less** = Small **Claims Tribunal** - Over **HKD 3 million** = Court **of First Instance** - Or the excess can be abandoned to proceed in the District Court - Eg. 3M and 1k -\> abandon 1K -\> 3M ### **2. Equity Jurisdiction** - Examples include: - Specific performance. - Administration of the estate of a deceased person - Relief against fraud or mistake - **[Maximum Values]** - For non-land related proceedings: up to **HKD 3 million** - For land-related proceedings: up to **HKD 7 million** - For recovery of land or title, the rateable value must not exceed **HKD 320,000** ### **3. Other Claims** - **[Employees\' compensation]** cases - No limit on the claim amount - **[Discrimination]** cases - Sex, disability, race, and family status - Family-related cases - Divorce, maintenance, custody, and adoption) are handled in the **[Family Court]** ### **Criminal Jurisdiction** - **[Indictable Offences]** - Deals with serious criminal cases transferred from the Magistrates' Court - Excludes murder, manslaughter, and rape - Maximum term of imprisonment for offences is **7 years** ### **Both** - Judge-Only Proceeding - No Jury - Can appealed to the **Court of Appeal of the High Court** ### **Process** 1. Arrest 2. Laying of Charges 3. Magistrates Court 4. Transfer to District Court 5. Filing of Indictment (formal charge / accusation of serious crime) 6. Plea-taking (arraignment) - Formal reading of a criminal charge in the presence of D to inform) a. Plead guilt b. Plead not guilty **[C) High Courts ]** ================================= ### **Before Handover** - **Supreme Court** - **Court of Appeal** - **High Court** ### **After Handover** - **High Court** - **Court of Appeal** - **Court of First Instance** **[Renaming]** - Courts were renamed in 1997 - But their functioning and jurisdiction remained unchanged **[Jurisdiction]** - **Original Jurisdiction**: Can hear and try cases for the first time. - **Appellate Jurisdiction**: Can hear appeals from lower courts. **[Right of Appeal]** - The appeal system exists to correct any errors or mistakes made during court hearings or investigations. **[i. Court of First Instance]** -------------------------------------------- ### **Jurisdiction** - Holds both **original** and **appellate** jurisdiction for **civil** and **criminal** matters - Has a broader jurisdiction than the District Court ### **Original Jurisdiction** 1. **[Civil Matters]** - Handles large civil claims exceeding the jurisdictional limits of the District Court - Includes cases such as **judicial review** - A process where a judge reviews the legality of public decision-making powers and legislation 2. **[Criminal Matters]** - Deals with serious offences that are not tried in the Magistrates\' or District Courts - Examples include - Murder - Manslaughter - Rape - Armed robbery - Trafficking of large quantities of dangerous drugs - Complex commercial frauds ### **Appellate Jurisdiction** - The Court of First Instance also hears appeals from lower courts, ensuring that legal errors can be reviewed and corrected ### **Composition** - Civil proceedings: tried by a judge - Criminal proceedings: judge + jury (of 7 or 8) **[ii. Court of Appeal]** ------------------------------------- ### **Jurisdiction** - Appellate jurisdiction for both civil and criminal matters ### **Composition** - Generally consists of **3 judges**, but may have more as long as the number is odd A diagram of a court Description automatically generated **[D) Court of Final Appeal ]** ------------------------------------------- **[Establishment]** - Established on **July 1, 1997 (handover)** - Under **Basic Law Article 81** and the **HK Court of Final Appeal Ordinance** **[Function]** - Replaced the Privy Council as the highest court in Hong Kong - Holds the final power of adjudication ### **Matters Heard** **[Civil Matters]** - Hears appeals from the Court of Appeal - And in limited situations, from the Court of First Instance - At the discretion of the Court of Final Appeal **[Criminal Matters]** - Hears appeals from the Court of Appeal - And in limited situations, from the Court of First Instance - At the discretion of the Court of Final Appeal ### **Leave to Appeal** **[Civil Matters]** - Permission granted by the Court of Appeal or the Court of Final Appeal - If the question is of great general or public importance **[Criminal Matters]** - Permission granted by the Court of Final Appeal if: - A point of law of great and general importance is certified by the Court of Appeal, Court of First Instance, or Court of Final Appeal - It is shown that substantial and grave injustice has been done ### **Court of Final Appeal Ordinance** - Governs the appointment of: - Permanent judges - Maintains a list of: - Non-permanent judges - Judges from other common law jurisdictions ### **Composition** - Consists of **5 judges**: - The Chief Justice - **3 permanent judges** - **1 non-permanent judge** (from Hong Kong or overseas) ### **Basic Law Article 82** - Establishes that the power of final adjudication in the HKSAR is vested in the Court of Final Appeal, which can invite judges from other common law jurisdictions as needed **[Topic 5B]** **The Doctrine of Precedent** ============================= ### **Definition** - **Doctrine of judicial precedent** - Decisions made by superior courts establish authoritative laws that bind judges in later cases - **Source of Law** - Precedent is recognized as a source of law within a specific court hierarchy - **Persuasive Authority** - Decisions from other jurisdictions may influence, but do not bind, local courts ### **Types of Stare Decisis** **[Vertical Stare Decisis]** - Lower courts are bound by the decisions of higher courts - Higher courts can overrule decisions made by lower courts **[Horizontal Stare Decisis]** - Courts at the same level may consider previous decisions but are not strictly bound by them ### **Statement of Law** **[Ratio Decidendi]** - **Definition** - The legal principle or rule that is the basis for a court\'s decision in a case - **Importance**: - Crucial to the court's decision on the facts of the case - It establishes binding precedent for future cases - Meaning that lower courts must follow this principle in similar circumstances **[Obiter Dicta]** - **Definition** - Comments or observations made by a judge that are not essential to the decision in the case - **Importance**: - These remarks are not binding on future cases but can be regarded as persuasive authority - They may provide insight or guidance for future legal reasoning but do not establish legal precedent ### **Case Analysis** **[Example Case: Foshan Hua Da Industrial Co v. Johnson Stokes & Master]** - **Facts: Describe what happened** - A plaintiff company extended a loan based on advice from solicitors but later faced issues with loan security due to competing claims - Advice from solicitor: - Generally on the desirability of obtaining a legal mortgage rather than an equitable one - Plaintiff - Did not seek advice as to whether the transaction was a safe one or not - **Law: Set out a principle** **Ratio / Obiter** - Solicitors owe a duty to exercise skill and care in advising clients - **Mixed: Facts & Law** - Failure to clearly explain the differences between a legal mortgage and an equitable mortgage did not constitute negligence or a breach of duty - **Ratio Decidendi** - The court found that the solicitors did not breach their duty, as they had provided general advice rather than failing to disclose specific risks **[Example Case: Donoghue v. Stevenson]** - **Court Held** - Manufacturers owe a duty of care to consumers to ensure products are free from defects that could cause harm - **Ways to Express the Legal Rules (Narrow -to-\> Wide Interpretation)** 1. A [manufacturer of ginger beer] must ensure there are [no decomposed snails] in the drink 2. A [manufacturer of food or drink] must ensure there are [no defects likely to cause death or injury] 3. A [manufacturer of any product] owes a duty to ensure there are [no defects likely to cause death or injury] (Generally accepted as the ratio) 4. A [person] owes a duty of care [if it is reasonably foreseeable that their actions could cause injury to another] ### **Doctrine of Precedent in Hong Kong** **[Court of Final Appeal (CFA)]** - **Vertical**: Not bound by any other court - **Horizontal**: Not bound by its own previous decisions **[Court of Appeal (CA)]** - **Vertical**: Bound by the CFA - **Horizontal**: Generally, bound by its own decisions - But can depart in certain circumstances **[Court of First Instance (CFI)]** - **Vertical**: Bound by the CFA and CA - **Horizontal**: Not bound by its own decisions **[District Court, Magistrates\' Courts, and Tribunals]** - **Vertical**: Bound by CFA, CA, and CFI - Though it\'s unclear if the District Court is bound by CFI - **Horizontal**: Not bound by their own decisions ### **Avoiding Precedents** Courts can decline to follow precedents in certain situations - If the law was assumed correct without proper argument - If the proposition was made as obiter, not ratio - If the decision conflicts with subsequently enacted legislation - If the previous court misinterpreted a statute - If the facts of the current case distinguish it from the precedent **[Topic 6A]** **Process of Legislation** ========================== **[Legislature]** ----------------------------- - **Statute Law:** Superior to case law - **Legislation:** Latin word for "proposing law" [**Basic Law Article 66** ] - Establishes the Legislative Council (LegCo) as the legislature of the Hong Kong Special Administrative Region **[Basic Law Article 73]** - Outlines LegCo\'s powers, including enacting, amending, or repealing laws. **[Types of Legislation]** -------------------------------------- - **Primary Legislation** - Ordinances passed by LegCo - **Subsidiary Legislation** - Rules, regulations, and orders made by bodies empowered by law (eg. An ordinance), allowing specialized law-making **[Life Cycle of an Ordinance ]** --------------------------------------------- **[1. Proposal ]** ------------------------------ **[2. Bill]** ------------------------- - **Definition**: A draft version of a proposed ordinance ### **Lifecycle** 1. **Green Paper** 2. **White Paper** 3. Becomes **Draft Bill** for LegCo debate 4. Draft Bill may be sent for public consultation 5. Bills are published in the **Gazette Legal Supplement No. 3** (blue in color). ### **Types of Bills** - [**Government Bills** ] - Drafted by the Department of Justice - Basic Law Article 62(5) - **[Member Bills]** - Proposed by LegCo members - Requiring Chief Executive\'s consent for those relating to government policies (such as: public expenditure / political structure / operation of the government) - Basic Law Article 74 **[3. First Reading ]** ----------------------------------- - A Bill is first read in the Legislative Council (LegCo). - The clerk **[reads the short title]** - Date for the Second Reading is set - The reading is recorded in **Hansard** - Proceedings of the LegCo **[4. Second Reading]** ----------------------------------- - A motion is moved to read the Bill a second time - LegCo **[discusses the Bill]** - Discussion is recorded in **Hansard** **[5. Committee Stage]** ------------------------------------ - Between the Second and Third Readings - The Bill is **[discussed in a committee]** (either select or whole LegCo) - Topics include - Whether the committee supports the proposed amendments? - Whether clauses should remain in the Bill? - Discussions recorded in **Hansard** **[6. Third Reading]** ---------------------------------- - A motion is moved for the Bill to be read a third time and do pass - **[LegCo votes on the Bill]** - If it receives a majority it becomes an ordinance pending the Chief Executive\'s assent **[7. Chief Executive\'s Assent]** ---------------------------------------------- - Legislation does not automatically become law - It requires the **[Chief Executive\'s assent]** **[8. Ordinance Publication]** ------------------------------------------ - First published in the [**Government Gazette Legal Supplement No. 1** ] - Later in the **[Loose-leaf Edition of the Laws of Hong Kong]** - Reported by the HKSAR government **[to the NPCSC]** (Basic Law Article 17) **[9. Coming into Force]** -------------------------------------- - Commencement Date - When published: effect immediately upon publication - Legal Supplement No. 1 of the Gazette - Another date: **[Commencement Date]**  - Legal Supplement No. 2 of the Gazette **[10. Amended]** ----------------------------- - An ordinance can be amended by - **[Another ordinance (published in L.S. No. 1)]** - **[Regulations (published in L.S. No. 2)]** - A type of subsidiary legislation: created by delegates of the LegCo **[11. Repealed]** ------------------------------ - An ordinance or part of it can be repealed by another ordinance (a Repealing ordinance) **[Example: Competition Bill ]** -------------------------------------------- 1. **1st Public Consultation** on competition policy conducted by the Economic Development and Labour Bureau 2. **2nd Public Consultation** on competition policy conducted by the Commerce and Economic Development Bureau. 3. **Executive Council Meeting**: The Council advised and the Chief Executive ordered the introduction of the Competition Bill into LegCo 4. **Competition Bill Gazetted** 5. **First Reading** of the Competition Bill in LegCo 6. **Formation of the Bill Committee** on the Competition Bill 7. **Bill Committee Meetings**: The Bill Committee met 38 times 8. **Bill Committee Report** submitted to the House Committee 9. **Resumption of 2nd Reading Debate** on the Bill 10. **Third Reading**: The Bill passed 11. **Signing by the Chief Executive** 12. **Publication** in Legal Supplement No. 1 of the Gazette 13. **Provisions of the Ordinance** concerning the establishment and operation of the Competition Commission came into effect 14. **Competition Ordinance** came into full effect **[Topic 6B]** **Statutory Interpretation** ============================ - Statutory law: created by legislators - But the meaning of the law may not always be clear - Thus: courts have the role in the interpretation of legislation **[General Approach]** - Courts aim to ascertain the **legislative intention** through the actual words of the legislation - Various **approaches** to statutory interpretation have been developed, which are not binding rules but serve as guidelines - **Literal Approach** - **Golden Rule** - **Mischief Rule** - **Purposive Approach** - **[In Hong Kong ]** - Interpretation and General Clauses Ordinance - Modern Approach **[Literal Approach]** ---------------------------------- - Focuses on the **[plain meaning of the words]** in the statute - [Lord Atkin] - If the language is clear, it must be enforced even if it leads to absurd outcomes - Legislature is assumed to have meant what it has clearly stated in the law - If: - Legislative errors - Not the courts business to fix the defects in the legislation - But for law makers to fix errors **[Golden Rule]** ----------------------------- - Modifies the literal approach to **[avoid absurd results]** - **[Allows for changes when the ordinary meaning creates inconsistencies]** - [Lord Wensleydale] - Normal meaning - The usual and straightforward meaning of the words in a law should be followed - Exceptions - If the normal meaning creates absurd results or contradictions with other parts of the law - Limitations - Only to prevent absurdities - Example - [Section 61B(3) of the Wills, Probate and Administration Act 1898 of New South Wales] - "If the intestate leaves a husband [or] wife and also leaves issue, then if the value of the assets \[\...\] does not exceed the prescribed amount the whole estate shall be held in trust for the husband [and] wife." - \"And\" -interpreted as-\> "or\" to resolve ambiguity **[Mischief Rule]** ------------------------------- - **[Interpret in a way to achieve the legislative intent ]** - Originates from **[Heydon's Case]** - Legislation purpose - Address specific problem - Court action - Interpret the laws to fulfill their intended purpose - Goal - Effectively remedy the issues that the legislation was designed to solve - Example - [S.4(2) of the Prevention of Bribery Ordinance] - Any public servant who,...., accept any advantage... performing or abstaininh from performing any act in [his capacity ] - Capacity: definition? - [In Kong Kam-Piu v. R] - The court broadened the interpretation of \"capacity\" to prevent police misconduct **[Purposive Approach]** ------------------------------------ - Evolve from mischief approach - But recognizes that not all laws aim to remedy a mischief - A **[broader interpretation aimed at achieving the legislature's purpose]** - **[Applicable to all legislation]** **[Difference: Mischief vs Purposive ]** - Mischief - Only applicable to legislation aimed at remedying some mischief in the existing law - Purposive - General application to all legislation **[Interpretation and General Clauses Ordinance]** -------------------------------------------------------------- - **[Consistent with purposive approach]** **[Section 19]** - **Remedial Nature** - An ordinance is recognized as a law intended to address specific issues or problems - **Interpretation Approach** - Broadly and fairly - To achieve their intended purpose **Remedial Statutes** - Aimed at fixing legal issues or providing remedies to an aggrieved person - Not stated how to interpret - Courts should interpret laws in a broad and flexible manner rather than a strict or limited way **[Modern Approach]** --------------------------------- - **[Considers various aids and interpretive contexts]** - When ascertaining **[intention of legislature]** - **[Bokhary PJ]** - It's important to read all relevant provisions together, understanding the statute as a cohesive whole within its legal and social context - **[Steps ]** 1. Plain meaning of words 2. Consider context & purpose of the statute - Note: Cannot interpret words in a way that goes beyond what those words actually convey - Unless: to rectify defect - Example - [Jade City International Ltd v. Director of Lands] - The court interpreted \"land\" based on the context of the entire ordinance - Ordinary meaning - Any land -\> compensation - Context - Ordinance: delt with land in relation to which the government acquired easement rights - No compensation - Thus: no compensation - Established rule - **[Chan Pun Chung v. HKSAR]** - Courts may add, omit, or change words in an ordinance to uphold its purpose if: - The intended purpose is clear - The legislature\'s failure to express that purpose was accidental - The essence of what the legislature intended is clear - The changes made are not overly significant **Aids to Interpretation within an Ordinance** ---------------------------------------------- - **Other Provisions** - Other provisions within an ordinance that help clarify the meaning of a specific section - **Definitions Section**: - Often includes the phrase \"unless the context otherwise requires.\" - **[Closed Definition]** - Specifies exactly what is included - e.g. animals **mean** cats and dogs - **[Open Definition]** - Broader; includes examples - e.g. animals i**nclude** cats and dogs **[Presumptions (Not Strict Rules)]** ------------------------------------------------- ### **1. Noscitur a Sociis (a thing known by its associate)** - A word is

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