LEGAL SYSTEM
- To compare civil and criminal cases
- To distinguish solicitor and barrister
- To introduce Legal Aid
- To identify different jurisdictions
司 法 管 轄 權 of Hong Kong Courts/Tribunals
1
Court of Final Appeal
Superior
Court
Court of Appeal
Court of First Instance
District Court
Inferior
Court
Magistrates’ Court
2
Court of Final Appeal
High Court
Court of Appeal
Court of First Instance
Lands Tribunal
Labour Tribunal
District Court
Family Court
Magistrates’ Court (7)
Eastern, Kowloon City,
Kwun Tong, West Kowloon, Fanling, Shatin, Tuen Mun
Juvenile Court
1
Small Claims Tribunal
Obscene Articles Tribunal
Competition Tribunal *new*
Coroners’ Court
teenag
3
CIVIL VS. CRIMINAL CASES
1.
2.
3.
4.
5.
Nature of cases
Consequences of breach
Prosecution procedure (i.e. who is the one who sue)
Burden of proof (i.e. who provide evidences)
Standard of proof (i.e. the sufficiency of evidences)
(
pnag
_
of
probability
,
civil case: on the balance of probability (lower standard)
1
criminal case: beyond reasonable doubt (higher
standard)
有罪
d
驪 證據
?
⼀
⼈
有 罪?
4
SUMMARY OF JURISDICTION
(maximum ceiling)
CIVIL CASE:
-
financial
lost
/ $ compensation
補償
Compensation <=HK$75,000*
<=HK$3 million*
More than HK$3 million*
Small Claims Tribunal
SCT (no lawyer)
DC
COFI
District Court
Court of First Instance
CRIMINAL CASE:
罰款
收監
Fine and imprisonment period:
Within HK$100,000 and 2 years
From 2 years to 7 years
More than 7 years
(*Revised in 3 Dec 2018)
Magistrates’ Court
DC
COFI (with jury)
陪審團
Civil vs Criminal Case: further points
1. Nature of Case
2. plaintiff?
Civil Case?
v2
xkillxinjuredn
Criminal Case?
domunity interests
Public interests
parties
Individual interests
Affected party
Department of Justice
原告，起訴⼈
(prosecutor)
起訴⼈，原告
3. Defendant?
被告
Wrongdoer
dceivedydepmduone.name
,
6
Wrongdoer
處刑
4. Consequence?
Seek for damages
(money compensation)
to cover “foreseeable”
financial loss suffered
Penalize wrongdoer (fine,
imprisonment, driving
improvement course,
community services, etc)
5. Where to sue?
Tribunal/Trial Court
(except Magistrates’
Court)
Magistrates’ Court as
starting point. If
exceeding the power, then
transfer to other court.
6.Evidences Sufficiency?
“Plaintiff” to prove to the
extent of balance of
probability (over 50%)
原告
“Plaintiff” to prove to the
prove
extent of (beyond
reasonable doubtjtnecrime
(over 90%)
the
_
must have
person
done
Web site for Hong Kong Court
System
Hong Kong Judiciary
https://www.judiciary.hk/en/court_services_
facilities/hc.html
7
Barrister (訟務律師)
vs
Solicitor (事務律師)
o
Duties
Supervisory
Bodies
Client
Relationship
Right of Audience
Training
SOLICITORS
• Deal with various legal matters:
h
devoru
– litigation, corporate, finance, tax, intellectual property,
matrimonial, conveyancing and property related matters, etc.
婚姻
1 【法律】 (不動產等的) 轉讓證書的製作業務
2 財產轉讓
• Primarily concerned with:
– giving legal advice and drafting legal/contractual documents
– pleading in lower courts hearings (inferior courts)
– Do not have right to act as advocates in superior courts (i.e. no
rights of audience), subject to the approval by Assessment Board
for application to have higher right of audiences in superior courts.
But applicants must have at least 5 years practicing experiences
(this relief is newly passed in Legal Practitioners (Amendment)
Ordinance 2010) in January 2010. If defending without approval,
it is regarded as contempt of court, subject to maximum penalty of
HK$500,000.
– Contact point between clients and barristers
• The Law Society of Hong Kong
9
BARRISTERS
• Duties of barristers:
提起 訴訟
,
– Primarily specialize in advocacy and litigation
matters
• have exclusive right of audience (i.e the right to argue
their client’s cases before judges) in ALL courts and
appear with wigs and gowns
• drafting of opinions on specialized matters
– Restricted access to clients (has to be referred and
employed by solicitor on client’s behalf)
客
• Hong Kong Bar Association :http://www.hkba.org
10
LEGAL AID
ppl
in
need
seekpnf
,
help
on
legal
matter
• Governed by the Legal Aid Ordinance
• http://www.info.gov.hk/lad/chi/las/faq.htm
• Means Test 經濟審查:
– A person whose total financial resources does not
exceed statutory limit may be granted legal aid
(HK$420,400）
• Merits Test 案情審查
– A person has reasonable grounds for bringing or
defending the proceedings to which the application
relates
11
COURT SYSTEM IN HKSAR
司法；司法權，審判權，裁判權
power 法官
:
_
can
lay
the
judge
on
,
• Jurisdiction - type of cases they have authority
to
加重
hear and maximum punishment they can impose
• Superior Court (High Court and Court of Final
Appeal) vs. Inferior Court (District Court,
Magistrates’ Court)
• Jurisdiction is either original (which hear and
decide a case first) or appellate (hear appeal case)
原訟和上訴的司法管轄權
12
SYSTEM OF COURT IN HKSAR (cont’d)
• Civil cases hearing are divided depending on:
– the nature of claim (e.g. employment, land
disputes, etc); and
– the amount of money involved (i.e. <$75K,
<$3 million or more)
13
SYSTEM OF COURT IN HKSAR (cont’d)
• Criminal cases hearing are divided depending on:
– the seriousness of the offence committed; and
– The maximum penalty for the offence
1.
summary offences 簡 易 程 序 罪 行 xpagtaxbill
4
deal
procedure
(normally tried by Magistrates’ Court)
e.g. littering, speeding, fail to file profits tax return, etc.
crime
can
2.
in
easier
.
indictable offences 可 予 公 訴 罪 行
(normally tried by COFI) xkillxinjurexseriousdistroy public property
e.g. murder, manslaughter, arson, armed robbery, etc.
⼀般殺⼈罪；過失殺⼈
縱火（罪），
放火（罪）
3. Offences Triable Either Way
(can be either DC or COFI)
e.g. possession of drugs, dangerous driving causing harm
14
MAGISTRATES’ COURT
• Magistrate sit alone and no jury in hearing cases
•
Main jurisdiction over “summary offences” (i.e. 1. formal trial on
less serious criminal cases; 2. Hear committal proceedings for
“indictable offences”)
•
Two types of magistrates – permanent and special
– Permanent magistrates:
• 2 years in prison and fine of HK$100,000
– Special magistrates:
• Handle minor, routine cases such as littering and road traffic
offences (cross the road not obeying traffic signal)
• Powers of sentencing limited to HK$50,000 fine (penalty)
and no power of imprisonment
15
FORMAL TRIAL (正式審判)
原告
被告
Trial judge listen to (1) plaintiff; and (2) defendant to present their:
a.
b.
c.
Factual evidences
Relevant statute law (legislation)
Similar previous cases.
Then judge make decisions.
• Evidences 證據 + relevant laws (common law and statute
together) 法例 (及案例)
• = 裁決 verdict
(i.e. to decide (1. 定罪 guilt) and (定刑 2. sentencing))
16
What is “COMMITTAL
PROCEEDINGS”(審判交付程序)
•
1. Screen evidences provided by “Dept of Justice” and make
sure they are sufficient (i.e. whether the prosecutor make out a
prima facie case).
•
2. If evidences sufficient, then transfer the case to relevant law
court for formal trial (to decide the guilt and sentencing):
- within 7 years – to DC
- if > 7 years – to COFI
(guilt decided by jury of 7, while sentencing decided by judge)
17
DISTRICT COURT
• They are inferior courts
(same as Magistrates’ Court)
• Proceedings are heard and disposed of by
judge sitting alone without jury
• Limited civil and criminal jurisdiction
18
DISTRICT COURT - CIVIL CASE
• Civil cases limited to:
– actions in breach of contract or tort (e.g. negligent,
defamation, etc) where damage claimed is “75K to
3,000K”
– Employees’ compensation cases (工傷案) and
discrimination cases (no limit on the amount claim)
19
DISTRICT COURT - CRIMINAL CASE
• Criminal cases:
– Try serious criminal offences (indictable offences) with exception
of murder, manslaughter and rape
– Also deals with summary offences transferred to it from
Magistrates’ Court
– Jurisdiction limited to 7 years of imprisonment
• Family Court being part of District Court
(to handle matrimonial cases)
20
HIGH COURT
• Includes
– (1) Court of First Instance and
– (2) Court of Appeal
• Headed by The Chief Judge of the High Court
• COFI granted with unlimited
(1) civil;
(2) criminal jurisdiction; and also
(3) here appeals from decisions of the Magistrates’ Courts
and various Tribunals
21
COURT OF FIRST INSTANCE
• Civil Cases:
– Judge sit alone when trying case
– Including cases of breach of contract, company winding-up,
infringement of intellectual property, administration of estate, etc
– Over 3 million (unlimited amount) compensation
• Criminal Cases:
– Deal with indictable offences such as murder,
manslaughter, and cases involving complex
commercial crimes
– Judge sit with jury of 7 or, on special occasions, 9
– Guilt determined by jury (with 5 to 2)
– Up to life imprisonment as penalty
• Hear appeal cases (loser from Magistrate’s Court, Small Claims
Tribunal, The Obscene Articles Tribunal, Labour Tribunal, Coroners
Court)
22
COURT OF APPEAL
• Entirely appellate jurisdiction
• Hears appeal from Court of First Instance and the
District Court. It also hears appeals from
Competition Tribunal, Lands Tribunal and various
Tribunals.
• Heard by a panel of 3 judges
• Further appeal made to the Court of Final Appeal 23
COURT OF FINAL APPEAL
• Established on July 1, 1997 (Chief Justice)
• Replaced the Judicial Committee of Privy Council as the
final court of Hong Kong
(highest and final appeal court in Hong Kong)
• An appeal is heard by:
– Chief Justice + not less than 3 permanent judges + one
non-permanent judge (or judge from another common
law jurisdiction selected by the Chief Justice and
invited by the court)
• Vested with power of final adjudication but does not have
jurisdiction over defence and foreign affairs.
24
OTHER INFERIOR COURTS & TRIBUNALS
• The Coroner’s Court 死 因 裁 判 法 庭 - handles inquiries into
unusual circumstances causing death, inquire into the
cause of and the circumstances connected with the death
• Labour Tribunal - adjudicating certain types of dispute
relating to contract of employment
(parties losing case may appeal to Court of First Instance)
– Deals with claim of HK$8,000 or more and arising from contracts
of employment
– less than HK$8K to Minor Employment Claim Adjudication
Board of the Labor Department
– No presence of lawyer
– how about an employee wants to claim compensation for his injury
suffered from working place? DC
25
TRIBUNAL
•
Small Claims Tribunal 小 額 錢 債 審 裁 處
• amounts claimed =<HK$75,000
• Cases tried by adjudicator during the trial
• No lawyer allowed
• Where to sue if the claim is $76,000?
• Fast, easy and low cost, only civil case.
•
The Lands Tribunal
– Resolve dispute between landlords and tenants and in
compensation claims relating to land
– Appeals go to Court of Appeal
•
Obscene Articles Tribunal – to classify whether a publicly displayed
articles are obscene or indecent
•
Competition Tribunal – (effective on 1Aug 2013) set up under the
Competition Ordinance (Chapter 619, enacted in 2012) as part of the
Judiciary, to hear and decide cases connected with competition law in
26
Hong Kong