The principal branches of the civil law include contract, tort, property, administrative, family and revenue law. The law of contract is concerned with the many different types of agreements into which persons, including 642-587 Braindump corporations, enter in going about their daily business. As one of the world's major financial and commercial centres, Hong Kong sees an immense number of corporate and financial agreements entered into each year. One important function of a lawyer is to ensure that such contracts are drafted clearly in an endeavour to prevent disputes arising.The law of tort is concerned with claims arising out of breaches of a duty of care owed by one individual to another.The law of property governs the ownership of, and rights in, property including land and buildings and intellectual property such as trademarks, patents and copyright.Administrative law is designed to protect the individual against an abuse of power by the government or public bodies.Family law deals with, amongst other things, divorce and disputes over the custody of children, 642-642 Braindump maintenance of spouse and children, and the division of property.Revenue law is relevant to the assessment and recovery of taxes and dutie.The principles of the common law are to be found in the judgments of the courts, both in Hong Kong and in other common law jurisdictions around the world. The language in which those judgments have been delivered over the years is almost exclusively English. There are hundreds of thousands of reported cases which form the basis of the common law, and it would obviously be impractical to attempt to translate these into Chinese. While in future there is likely to be an increasing 642-812 Braindump number of judgments in Hong Kong delivered in Chinese, English will continue to be the only medium in which the majority of judgments from overseas is reported.

The vast majority of statute law in force in Hong Kong is made locally and contained in the Laws of Hong Kong. A great deal of legislation is made under delegated powers. This is called subsidiary legislation. For example, an ordinance may delegate to the Chief Executive in Council (the Chief Executive with the advice of the Executive Council)642-446 Braindump the power to make regulations to deal with the details of the implementation of a legislative scheme Some aspects of Chinese customary law apply in Hong Kong. For example, under section 13 of the New Territories Ordinance (Cap 97) the courts may recognise and enforce Chinese customs or customary rights in relation to land in the New Territories; and Chinese law and custom is recognised in the Legitimacy Ordinance (Cap 184 Over 200 international treaties and agreements have been applied to Hong Kong. A treaty does not constitute part of Hong Kong's domestic law until given effect by legislation. Nonetheless, it may affect the development of the common law. It may, for example, be resorted to by a court as an aid to interpretation. 642-523 Braindump The rapidly developing rules of customary international law can also become absorbed into the common law.The most serious criminal offences, such as murder, manslaughter, rape, armed robbery and certain drug offences, are tried by a judge of the Court of First Instance, sitting with a jury of seven people or, where a judge so orders, nine. It is the jury which decides whether the accused is guilty or not guilty. A judge will urge a jury to strive for unanimity in reaching their verdict, but a jury may return a majority verdict of five to two or seven to two.The purpose of a death inquest is to establish the identity of a deceased person and the cause of and circumstances connected with the death. In certain defined cases, an inquest must be held with a jury. In these cases, and in any other case in which the Coroner decides to hold an inquest with a jury, a jury of five is appointed.The main difference between criminal and civil proceedings is that the former are instituted in the name of the HKSAR to suppress crime and to punish criminals, while the latter are taken to protect and to recover property and 642-552 Braindump to enforce obligations.While civil proceedings are often taken by the government against individuals, including corporations, and vice versa, such proceedings are more commonly instituted by individuals against other individuals.The burden of proof is easier to discharge in a civil case than in a criminal case, the standard of proof being one based on the balance of probabilities.

The National People's Congress through the Basic Law authorises the HKSAR to exercise a high degree of autonomy directly under the Central People's Government. The HKSAR enjoys executive, legislative and independent judicial power, including that of final adjudication, in accordance with provisions of the Basic Law. Although foreign affairs relating to the HKSAR are the responsibility of the Central People's Government, the HKSAR 640-822 Braindump is authorised to conduct relevant external affairs on its own in accordance with the Basic Law. The Central People's Government is also responsible for the defence of the HKSAR, but the responsibility of maintaining public order in the HKSAR is a matter for its government.The Basic Law details the fundamental rights, freedoms and duties of the residents of the HKSAR. These rights include the right to equality before the law; freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike; freedom of movement; freedom of conscience; and freedom of religious belief. The Basic Law also guarantees that the provisions of the International Covenant on Civil and Political Rights; of the International Covenant on Economic, Social and Cultural Rights; and of the International Labour Conventions as applied to Hong Kong will remain in force.Common law and the rules of equity are to be found primarily in the judgments of the superior courts in Hong Kong and other common law jurisdictions. In historical terms, reports of judgments handed down by judges have, since at least the 15th century, established in detail the legal principles regulating the relationship between state and citizen, and between citizen and 640-863 Braindump citizen. There are now some hundreds of thousands of reported cases in common law jurisdictions which comprise the common law. The rights relating to freedom of speech, freedom of assembly, and freedom from arbitrary arrest or imprisonment have been spelt out in cases which were decided more than three centuries ago. As we have seen, these have now been underpinned by provisions in the Basic Law.The common law's most distinguishing hallmark is reliance on a system of case precedent, not restricted to judicial decisions generated within any single jurisdiction, but case law from all jurisdictions throughout the common law world.642-426 Braindump Article 84 of the Basic Law provides that the courts of the HKSAR may refer to the precedents of other common law jurisdictions. In addition, the Court of Final Appeal and Judiciary of the HKSAR is given power to invite judges from other common law jurisdictions to participate in the judicial processes.

Legality and equality before the law are two fundamental facets of the rule of law. But the principle demands something more, otherwise it would be satisfied by giving the government unrestricted discretionary powers. A further meaning of the rule of law, therefore, is to be found in a system of rules which restrict 640-801 Braindump discretionary power. To this end the courts have developed a set of guidelines aimed at ensuring that statutory powers are not used in ways which the legislature did not intend. These guidelines relate to both the substance and the procedures relating to the exercise of executive power. An example of the former is where a court concludes that a decision which purports to be authorised by a statutory power is plainly unreasonable and cannot have been envisaged by the legislature. An example of the latter is where a decision has been made without according the party affected the opportunity of being heard in circumstances where the legislature must have envisaged that such an opportunity would have been given. In both cases a court would hold that the decisions were legally invalid.The Basic Law of the HKSAR was enacted 640-802 Braindump by the National People's Congress in accordance with the Constitution of the People's Republic of China. It is akin to a mini-constitution for the HKSAR. It was promulgated on 4 April 1990 and took effect on 1 July 1997 on the establishment of the HKSAR. All the systems and policies practised in the HKSAR must be based on the provisions of the Basic Law. These include the social and economic systems; the system for safeguarding the fundamental rights and freedoms of its residents; the executive, legislative and judicial systems; and the relevant policies. Furthermore, no law enacted by the legislature of the HKSAR may contravene the Basic Law.The most prominent feature of the Basic Law is the underlying principle of "one country, two systems" whereby the socialist system and policies shall not be practised in the HKSAR, and the previous capitalist system and way of life is to remain unchanged for 50 years.Under the Basic Law, all the laws previously in force in Hong Kong 640-816 Braindump (that is, the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, except for any that contravene the Basic Law and subject to any amendment by the HKSAR legislature. National laws of the People's Republic of China shall not be applied in the HKSAR except for a number of such laws relating to defence and foreign affairs which are listed in Annex III to the Basic Law.

The first edition of this booklet was published in 1991. Its stated aim was to help the public understand how our legal system works. It stressed the importance of the rule of law to Hong Kong's past success and future promise and emphasised the role that an informed public could play in ensuring the continued vitality 350-001 Braindump of the legal system.2007 marked the tenth anniversary of the establishment of the Hong Kong Special Administrative Region and the constitutional framework of Hong Kong's legal system has changed significantly since that first edition. But under the Basic Law of the Region, the laws previously in force have been maintained and adherence to the rule of law, buttressed by an independent judiciary, has remained a constant. With the establishment of the Court of Final Appeal in 1997 the power of final adjudication is now exercised in Hong Kong and the Basic Law provides constitutional protection for the rights and freedoms of Hong Kong's residents.I hope this latest edition of this guide, 350-018 Braindump like its predecessors, will help explain our legal system and promote an understanding of its importance to us all.The "rule of law" refers to some of the fundamental principles of law that govern the way in which power is exercised in Hong Kong. The rule of law has several different meanings and corollaries. Its principal meaning is that the power of the government and all of its servants shall be derived from law as expressed in legislation and the judicial decisions made by independent courts. At the heart of Hong Kong's system of government lies the principle that no one, including the Chief Executive, can do an act which would otherwise constitute a legal wrong or affect a person's liberty unless he can point to a legal justification for that action. If he cannot do so, the affected person can resort to a court which may rule that the act is invalid and of no legal effect. Compensation may be ordered in the affected person's favour. This aspect of the rule of law is referred 350-030 Braindump to as the principle of legality.One corollary of the principle of legality can be summarised as equality before the law. It is fundamental that all persons, regardless of race, rank, politics or religion, are subject to the laws of the land. Further, the rule of law requires that the courts are independent of the executive. This independence is crucial if impartial rulings are to be given when the legality of acts of government falls to be decided.