Law of Hong Kong
The law of the Hong Kong Special Administrative Region has its foundation in the English common law system, inherited from being a former British colony and dependent territory. There are several sources of law, the primary ones being statutes enacted by the Legislative Council of Hong Kong and case law made by decisions of the courts of Hong Kong.
Since the handover in 1997, the constitutional framework is provided by the Hong Kong Basic Law, which is a piece of National Law of the People's Republic of China and has, practically, constitutional status in Hong Kong. The principle of ‘one country, two systems’ was enshrined in Article 5 of the Basic Law until at least 2047, which contrasts the ‘socialist system and policies’ and ‘the previous capitalist system and way of life’.
The Basic Law provides that the common law system shall be maintained. Some commentators described the theoretically hybrid system of civil law and common law as unique, although there are similar arrangements all over the world. Other commentators point to the socialist law tradition instead of the civil law tradition.
Primary legislation in Hong Kong are usually known as ‘Ordinances’, instead of ‘Acts’. The published, consolidated copies of Ordinances are given chapter numbers in Laws of Hong Kong and in the official online database.
Some national laws on foreign affairs, the national emblem and flag, and national security apply directly in Hong Kong by virtue of stipulations in Article 18 and Annex III of the Basic Law.
History and the Basic Law
Hong Kong's legal system was developed under British governance, based on the English common law. Under British rule, the constitutional documents that governed Hong Kong were the Letters Patent and the Royal Instructions, and judicial cases were generally appealable to the Judicial Committee of the Privy Council in the UK.In the 1984 Sino-British Joint Declaration, the UK and the PRC mutually agreed that Hong Kong would be returned to China after 1997. Hong Kong would be governed by the "one country, two systems" principle, under which Hong Kong's previous capitalist system and way of life, including the legal system, would remain unchanged for a period of 50 years until 2047.
The Hong Kong Basic Law, which is a law passed by the Chinese National People's Congress, came into effect in 1997, becoming the constitutional document in Hong Kong. The law was passed in accordance with Article 31 of the Chinese Constitution, which authorized the establishment of Special Administrative Regions. The Basic Law sets out the status of Hong Kong as a Special Administrative Region of the PRC, the one country, two systems principle, the political structure of Hong Kong, and the rights of duties of Hong Kong residents.
Bilingualism
Hong Kong has a bilingual legal system, with both Chinese and English being official languages of Hong Kong. Today, all laws are enacted in both Chinese and English with both versions enjoying equal status, and court proceedings may be conducted in either Chinese or English. While English remains the dominant language in the legal profession and the courts — with most court judgements still only published in English — the use of Chinese has become increasingly prevalent, and more than 70% of criminal cases in the magistrates' courts and District Court in 2017 were heard in Chinese.History
English and Chinese both became official languages of Hong Kong with the enactment of the Official Languages Ordinance in 1974 for the purposes of communication between the government and the public.However, it was not until 1986 that the Hong Kong Royal Instructions were amended to allow laws to be enacted in English or Chinese. The first bilingual ordinance to be enacted by the Legislative Council was the Securities and Futures Commission Ordinance, which was passed into law in April 1989.
In 1995, Chinese was allowed to be used as a procedural language in court, and the use of Chinese is now widespread in the lower courts, with 84% of cases in the magistrates' courts in 2017 conducted in Chinese.
The Basic Law, which became Hong Kong's mini-constitution in 1997, provides for English, "in addition to the Chinese language", to be used "as an official language by the executive authorities, legislature and judiciary of the HKSAR". The Basic Law itself was enacted in Chinese by the Chinese national legislature, and while the English and Chinese versions are "equally authentic", the Chinese version prevails in the event of any discrepancy.
Legal areas
Administrative law
Administrative law in Hong Kong is heavily modelled on its counterpart in England and Wales, especially the law of judicial review. This applies both to the procedure and grounds of judicial review, though there is some divergence in various areas. Some aspects of administrative law, for example administrative tribunals, were originally modelled on their counterparts in England and Wales but have not been systematically reformed for decades.Constitutional law
The Hong Kong Basic Law contains the essentials of the constitutional framework in the Hong Kong Special Administrative Region. Article 8 stipulates that all laws in force before 1997, includingthe common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.
Article 18 states, further, that national laws, from the People's Republic of China do not apply, except for a specific list in Annex III to the Basic Law, to which the Standing Committee of the National People's Congress can add or delete what it chooses. However, this may only be in the fields of "defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law". It also has a derogation, in a war situation, for a state of emergency to be declared.
Hence, the laws in force are in hierarchical order are The Hong Kong Basic Law; legislation in force before 1 July 1997 that was adopted as laws of the HKSAR by the Standing Committee of the National People's Congress; laws enacted by the Legislative Council of Hong Kong after 1997; and national laws listed in Annex III to the Basic Law and applied by way of promulgation or legislation; common law and equity; subordinate legislation; customary law.
Currently, twelve national laws apply in the HKSAR. These national laws apply in Hong Kong by the Hong Kong legislature legislating on the same matter: for example, the Law of the People's Republic of China on the National Flag, a Chinese statute, takes effect in Hong Kong in form of the National Flag and National Emblem Ordinance, a local statute enacted by the local legislature.
The Basic Law contains provisions that offer protection for human rights. Any laws that contravene the Basic Law are unconstitutional and are of no effect. Hong Kong has a Bill of Rights Ordinance which is the local adaptation of the International Covenant of Civil and Political Rights. Laws have been passed to ensure the human rights protected in the Basic Law and the Bill of Rights, such as the Personal Data Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance, Sex Discrimination Ordinance and Race Discrimination Ordinance.
Contracts and obligations
The law in relation to unfair contract clauses is embodied in the Unconscionable Contracts Ordinance, Cap 458. Section 6 lists a number of factors which may be relevant to a consideration of "unconscionability".In a 2003 ruling on Shum Kit Ching v Caesar Beauty Centre Ltd., HCSA 38/2002, it was held that, in determining whether a contract is unconscionable for the purposes of section 5 of the UCO, the court must have regard to "all circumstances" relevant to that issue, as well as the factors listed in section 6. The Hong Kong Consumer Council has commented that this ruling leads the court "to tend to focus on the totality of the circumstances and conduct that give rise to unfairness in the bargaining process rather than the meaning and effect of the term alone". In this case, the beauty centre issued terms which stated the full cost of a treatment would be forfeited if an appointment was cancelled. The court held that "loss" was limited to "loss of profit" and therefore the total treatment cost could not be treated as a genuine pre-estimate of loss.
A review of the extent to which the courts in Hong Kong could consider the commercial purpose of the parties when interpreting a commercial contract was occasioned by the Hong Kong Court of Final Appeal's consideration of the lower courts' rulings in Sinoearn International Ltd v Hyundai-CCECC Joint Venture , with a ruling published in December 2013. The ruling drew on case law from across various common law jurisdictions and confirmed that the courts can interpret contracts using "commercial common sense", but cannot "construct" a contract to accommodate the profit or other expectations of any of the parties to the contract.