LLAW1008
Question One
Explain, citing relevant legal provisions and authorities where applicable, how the
continuous applications of the principles and institutions of the common law tradition in
the Hong Kong Special Administrative Region contribute to the rule of law in the region.
Introduction
Common law principles and traditions such as the adversarial system, legal precedents, statutory
interpretation, and the jury are continuously applied to achieve rule of law (“RoL”) in Hong Kong.
Rule of Law
Following are recurring themes of RoL in the common law tradition.
Equality Before the Law
Dicey argued that “Every man, whatever be his rank or condition, is subject to the ordinary law
of the realm”. It is echoed by Former Chief Justice (“CJ”) Li, who notes “Everyone, both those
who govern and those who are governed is subject to the same laws.”.
Human Rights (“HR”) Protection
Lord Bingham’s sub-rules denotes “The law must afford adequate protection of fundamental
rights”. This corresponds with then CJ Ma arguing RoL “respect[s] the dignity and rights (HR
and freedom) of individuals.”.
Legal Certainty and Predictability
Lord Neuberger recognized one element of RoL is “a society which is subject to rules which
are accessible, clear….” This is echoed with Lord Bingham, mentioning the law must be
“accessible, intelligible, clear and predictable.”.
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Adversarial System
Hong Kong Courts adopt the adversarial system. Judges are passive, impartial referees, where
lawyers would aggressively confront each other by presenting evidence and identifying flaws in the
cases from opposing sides. Held in Jones v National Coal Board, trial judges will not “conduct an
investigation or examination”.
Judicial non-intervention safeguards equality, as judges are not active investigators, it minimizes
potential personal bias and prejudice to both sides when handing down judgments.
Legal Precedents
Currently, Hong Kong practices stare decisis. The ratio decidendi of cases from the superior courts
are binding to the court with a lower status, given precedents and cases share similar material facts.
Held in Solicitor (24/07) v Law Society of Hong Kong, “the doctrine of precedents is a fundamental
feature” as it “gives the necessary degree of certainty to the law and provides reasonable
predictability and consistency of its application.” Meanwhile, it promotes legal flexibility as judges
could distinguish a precedent from current cases, to meet the needs of ever-evolving social
circumstances. Courts can depart from precedents satisfying the “plainly wrong test” in civil cases
and per incuriam test in criminal cases.
Legal precedents achieve RoL through promoting legal certainty and equality before the law.
Former precedents bind courts, and like cases shall be treated alike. This ensures equality and
certainty as judges could not depart from precedents decisions under subjective personal
preferences unless “objective differences can justify differentiation”.
Conversely, judges also have discretion through re-formulating the ratio and overruling outdated
caselaws to protect HR better. In W v Registrar of Marriage, the court included transgender under
Marriage Ordinance and allowed marriage under their affirmed sex through overruling Corbett.
Statutory Interpretation
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Courts currently use purposive approaches to interpret statutes, an evolved, modern form of the
traditional mischief rule. In Cheung Kwun Yin, purposive interpretation means “ascertain[ing] the
intention of the legislature expressed in the language of the statute” through an “objective exercise”.
In Chui Shu Shing, French NPJ added “[interpretation] involves an integrated consideration of text,
context, and purpose.”
Similarly, section 19 of Interpretation and General Clause Ordinance stipulates “any ordinance shall
be deemed remedial”, and shall receive “fair, large and liberal construction and interpretation will
best ensure the attainment of the Ordinance according to its true intent, meaning, and spirit”.
Unlike the rigid “literal rule”, purposive interpretation provides the flexibility for courts to look at
the language, purpose, and context of legislative provisions.
This promotes predictability and certainty of law. The statutory text is available for the public while
the legislators' intentions are not. Rules of statutory interpretation refrain courts from arbitrarily
interpreting provisions and give meaning that they cannot bear (China Field). Statutory meanings
ascribed by courts are certain and avoid ambiguities that may undermine HR, therefore achieving
RoL.
Moreover, courts held rebuttable presumptions in statutory interpretation, including the presumption
of legality, consistency with legal obligations, and against retroactivity.
Statutes are also construed considering relevant social and technological changes. A statute is
“always speaking” (Wong Yuk Man). Along with the abovementioned presumptions, this ensures
that the court’s interpretation is consistent with current HR standards.
However, the purposive approach is so flexible that uncertainty may arise sometimes. In T v
Commissioner of Police, both majority and minority judges use purposive approach but achieve
distinct conclusions. Judges are divided on the definition of “Place of Public Entertainment” as they
are unsure what element is required. This may impede RoL.
Jury System
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The Jury System is an ancient tradition in common law dating back to Magna Carta. Clause 39 of
the Magna Carta states no freeman can be punished “except by the lawful judgment of his peers or
by the law of the land.”
Trial by Jury is constitutionally protected under BL 86 and currently adopted in criminal courts in
the Court of First Instance, such as HKSAR v Leung Tin-Kei.
Under Jury Ordinance, laypeople are randomly selected from the public. The jury arbitrates facts
and returns verdicts. This increases the transparency and credibility of the legal system by
incorporating democratic and popular elements. Juries decide independently and impartially, free
from political and outside interferences (Chan Huandai).
Therefore, trial by jury ensures equality before the law. An independent jury decides based on the
evidence. Jury systems also protect HR. Under the doctrine of jury equity, juries can rule based on
their consciences. It acts as the last line of defense against prosecution from draconian laws through
acquitting the accused. This protects individual HR and liberty, achieving RoL.
However, juries may be biased, incompetent, fail to comprehend complicated legal principles, and
make a well-reasoned judgment. The right to trial by jury is also not absolute (Chiang Lily).
Furthermore, the National Security Law (“NSL”) further diminish the rights of trial by jury. NSL
46, applied in Tong Ying Kit, states certificate can be issued for no jury trial for NSL offenses. This
hampers the RoL.
Conclusion
Adversarial System, legal precedents, rules of statutory interpretation, and jury system are features
in maintaining RoL in Hong Kong to a large extent.
Question Three
Critically discuss, citing relevant legal provisions and authorities where applicable, the
importance of part-time judges to the due and timely administration of justice in the
superior courts of the Hong Kong Special Administrative Region.
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Introduction
To a large extent, Part-time judges of superior courts are important to the due and timely
administration of justice.
Definitions
Superior Courts in Hong Kong consist of the Court of Final Appeal (“CFA”), the Court of Appeal
(“CA”), and the Court of First Instance (“CFI”) of the High Court and the Competition Tribunal.
Part-time judges in the abovementioned courts include the Non-permanent Hong Kong judges
(“Local NPJs”) and Overseas judges from other common law jurisdictions (“CLNPJs”) in the CFA,
recorders of the High Court, and deputy High Court judges.
The Basic Law ("BL") stipulated justice's due and timely administration. BL 85 stipulates that
judicial power shall be exercised independently, free from interference. This ensures the due and
impartial process of law. Also, BL 87 and Article 11(c) of Bills of Rights mentioned anyone
arrested shall have a right to a fair trial without undue delay. As the maxim goes, “justice delayed is
justice denied”, timely administration of justice is essential.
Part-time Hong Kong judges in CFA
Chief Executive (“CE”) appoints local NPJs at the recommendation of the Judicial Officers
Recommendation Commission (“JORC”) after endorsement by the Legislative Council. Current
Local NPJs include Justice Bokhary and Justice Tang, both are retired ex-Permanent judges in CFA.
They would sit in appeals along with the five-judge panel when the Chief Justice is absent. With
their expertise, local NPJs ensure due administration of justice when CJ is absent.
Part-time overseas judges in CFA
BL 82 provides CFA with the legal basis for inviting judges from other common law jurisdictions to
CFA. In the Hong Kong Court of Final Appeal Ordinance, a judge is only eligible to be appointed
as a CLNPJ if the judge is an incumbent or retired judge of a court of unlimited civil and criminal
jurisdiction, not ordinarily resident in Hong Kong, and has never sat on a Hong Kong Court.
Current Overseas NPJs include Lord Sumption, former Chief Justice of UK Supreme Court.
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Similarly, CE appoints them under the recommendation of JORC after endorsement for renewable
3-year terms.
CLNPJs bring in fresh and diverse legal wisdom. Justice Fok contended that CLNPJs “provide a
deep pool of specialist expertise” as they specialize in different disciplines. Since various CLNPJs
are former Chief Justice from common law jurisdictions such as Australia, Canada, and the UK,
they have provided authoritative and definitive answers to questions of law. NPJs contribute to
exchanging legal perspectives through writing high-quality leading or concurring judgments and
collegiate discussion of cases, which leads to the cross-fertilization of ideas.
Moreover, CLNPJs contribute to judicial independence and judicial accountability. By sitting in the
CFA, CLNPJs adhere to the judicial oath of “administering justice without fear or favour,
self-interest or deceit”. Also, they can make a strong public testament from their personal
experience on how judicial impartiality and rule of law are maintained. It fosters confidence and
reputation in Hong Kong’s legal system externally.
Furthermore, CLNPJs ensure that Hong Kong’s legal system aligns with international standards. BL
84 permits Hong Kong to refer to precedents from international jurisprudence in common law
jurisdiction. Similarly, CLNPJs judging in CFA can ensure that its decision is “in accord with
generally accepted principles of the common law”. (Chen Li Hung v Ting Lei Miao). Likewise,
Lord Neuberger mentions that CLNPJ “ensures Hong Kong law benefits from development
elsewhere in the common law world”, such as borrowing overseas legal solutions, therefore
improving the quality of Hong Kong law.
Part-time judges in High Court
Chief Justice appointed part-time judges in High Court ( Chan Kei Fung v Carrie Lam ). As
recorders and deputy judges, they help relieve caseloads and bring external expertise to the judicial
process. In 2021, the caseload in CFI reaches nearly 20,000, but there are only 29 full-time high
court judges. Amongst them, around 90% of cases are civil cases. Selected from Senior Counsel or
retired judges from the superior court, they ensure that cases can be heard timely without undue
delay while not lowering the standard of High Court judges.
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Shortcomings of part-time judges
One may contend CLNPJs are unfamiliar with Hong Kong’s circumstances, therefore laying down
judgments failing to conform to local conditions. It may lead to legal uncertainty if CLNPJs
influence the decision of CFA.
However, such an argument is rebuttable. As a visiting overseas judge, the CLNPJ is the most
junior judge among the five-judge panel, and it is sporadic for a CLNPJ to dissent from the
majority. It only happens twice in cases Tsien Wui Marble Factory and Next Magazine v Ma
Ching Fat. In the recent CFA judgment of Tong Wai-Hung, which is under the backdrop of Hong
Kong protests, five judges unanimously agree on the inapplicability of joint enterprise in riots and
unlawful assemblies. This indicates CLNPJs are sensitive to their roles and obligations as Hong
Kong judges.
Alternatively, dissenting judgments from CLNPJs can also be seen as a strength of Hong Kong’s
legal system in judicial independence - The independence of judges as a person.
The use of part-time judges in the High Court may impair judicial impartiality. Since these part-time
judges’ incomes mainly come from private practice, including practising in inferior courts. These
cases may then appeal to the CFI. It may give outsiders the impression that a part-time judge is a
“judge of his own cause”.
Moreover, part-time judges may not be willing to make controversial judicial decisions. In contrast
with their full-time counterparts, full-time judges enjoy secured tenure protected by BL 89 and only
be removed for inability to discharge one’s duty. Recorders are appointed for a typical of three
years. Professor Reyes argued that part-time judges “will play safe” to stay in office. This would
undermine the due process of law as judges may take into tenure as concerns when making
judgments.
The Judiciary could overcome such shortcomings by recruiting more full-time judges. This ensures
efficient court hearings without jeopardizing judicial independence.
Conclusion
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Part-time judges contributed tremendously and remain highly important to the due and timely
administration of justice in Hong Kong.
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