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Hong Kong Legal System in Asia

Hong Kong is one of the two Special Administrative Regions of the People’s Republic of China.

The Hong Kong law system is mixed (Common law/Customary). This mixed legal system of common law is based on the English model and Chinese customary law (in matters of family and land tenure).

Hong Kong Main Courts

◾Court of Final Appeal
◾Court of Appeal
◾Court of First Instance
◾District Court
◾Family Court
◾Lands Tribunal

Legal Resources in Hong Kong

• Database of ordinances of Hong Kong
• Full text of the Basic Law
• Government Gazette
• Law Reform Commission of Hong Kong
• Basic Law Drafting History Online
• Hong Kong Legal Information Institute (HKLII)

For information about the Hong Kong Portal of the Asian Encyclopedia of Law click here.

The Basic Law of Hong Kong

Several national laws of the People’s Republic of China apply in Hong Kong by virtue of Article 18 of the Basic Law. Under Article 158 of the Basic Law, an interpretation of a provision of the Basic Law by the Standing Committee of the National People’s Congress is to be followed by the courts of Hong Kong in applying the relevant provision.

Introduction to the “Basic Law”

Basic Law of the HKSAR was enacted by the National People’s Congress, and is like a mini-constitution for the HKSAR. It was promulgated on 4 April 1990 and took effect on 1 July 1997, more than 7 years later, on the establishment of the HKSAR.

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.

No law enacted by the legislature of the HKSAR may contravene the it, and all the systems (social and economic systems; the system for safeguarding the fundamental rights and freedoms of its residents; the executive, legislative and judicial systems) and policies practised in the HKSAR must be based on the provisions of the Basic Law.

Under the Basic Law, all the laws previously in force in Hong Kong (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 political structure of the HKSAR

The main powers and functions of the Government of the HKSAR (which is headed by the Chief Executive, who is accountable to the Central People’s Government) include the formulation and implementation of policies, the conduct of administrative affairs and the drawing up and introduction of budgets and legislation. The Chief Executive presides over the Executive Council and appoints its members.

The HKSAR’s legislature is the Legislative Council, and the Basic Law prescribes the specific method for forming the Legislative Council and its procedures for voting on bills and motions. Under the Basic Law, the Legislative Council’s functions include the making of laws, approving budgets and public expenditure and monitoring the work of the government in general.

Relationship between HKSAR and the Central Authorities

With a high degree of autonomy directly under the Central People’s Government, the HKSAR enjoys executive, legislative and independent judicial power. Although foreign affairs relating to the HKSAR are the responsibility of the Central People’s Government, the HKSAR 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.

Fundamental rights in Hong Kong

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.

The common law and the rules of equity in the Territory

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 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.

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. 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 the Judiciary of the HKSAR is given power to invite judges from other common law jurisdictions to participate in the judicial processes.

Statute law enacted in Hong Kong

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) the power to make regulations to deal with the details of the implementation of a legislative scheme.

Chinese customary law in Hong Kong

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).

International law and Hong Kong

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. The rapidly developing rules of customary international law can also become absorbed into the common law.

Where to Start

General Information about Hong Kong and their Legal Tradition

Hong Kong and their People

Read about Hong Kong and their People here.

Historical Background of Hong Kong

Overview of the history of Hong Kong.

Legal Education

Offering a summary of the legal education, including law schools , in Hong Kong.

Development of Hong Kong Law

Report on the development of the law in Hong Kong.

Structures of Hong Kong Law

It offers a description of the structures of the law in Hong Kong.

Sources of the Hong Kong Law

Summary of the sources of Law in Hong Kong.

Historical Background

More about the history of the Hong Kong law here.

Enacted Law in Hong Kong

Read more about the legislation in Hong Kong.

• The Hong Kong Constitution

Learn more about the Constitution of Hong Kong.

• Hong Kong Codes and Statutes

Survey of Hong Kong Codes and Statutes.

• Hong Kong Statutory Decrees

Outline of the Hong Kong Statutory Decrees.

• Hong Kong Regulations

Scope of the Regulations enacted in Hong Kong.

• Hong Kong By-Laws

Observation about the By-Laws in existence in Hong Kong.

Customary Law

Learn more about the customary law of Hong Kong.

Case Law as a Source of Law

Analysis of the Case Law in Hong Kong.

Precedents in Hong Kong

Evaluation of the role of Precedents in the Hong Kong legal system.

Doctrine in Hong Kong

Review of the legal Doctrine in Hong Kong.

International sources of law

See more about the international sources of law in Hong Kong and Asia, including International Treaties.

The Hong Kong Government System

Study of the Government system in existence in Hong Kong.

Hong Kong Constitutional Structure

Overview of the Constitutional Structure in Hong Kong.

Historical Background

Read more about the history of the Government System of the country.

General Characteristics of the Constitution

Constitution of Hong Kong: the main features.

Human Rights in Hong Kong

Scope of the Civil and Human rights in the country.

Legislative Branch

The legislative branch proposes laws. Find a description of the Legislative Power in Hong Kong here.

Structure of the Hong Kong Legislative Branch

Observation of the structure of the legislative power in Hong Kong.

Functions and Powers

See more about the role of the legislative power in Hong Kong here.

Legislative Process

Read how the Hong Kong legislative procedures work here.

Supervision of the Executive

Learn how the legislative branch supervises the executive branch.

Executive Branch

The executive power proposes laws. Read more.

Head of State in Hong Kong

The head of state of Hong Kong is the formal head of the executive, legislature and judiciary of Hong Kong.

Head of Government in Hong Kong

The head of government in Hong Kong is the Prime Minister of Hong Kong, the political leader of the government of Hong Kong.

Hong Kong Council of Ministers

See information about the Cabinet Ministers of Hong Kong here.

Hong Kong Local Governments

Review of the local government powers in Hong Kong. See the definition of local rule here.

Local Organizations of Central Administration

The central administration consists of a number of ministries and other organizations, including local ones. Various departments, offices and divisions are established in each ministry in Hong Kong. See the definition of centralization here.

Hong Kong Municipalities

Outlook of the cities, towns, villages and other communities, including municipal courts (when applicable), and their legal authority in Hong Kong.

Judiciary Branch

The judiciary power interprets and applies laws. Find here a review of the Judicial System in Hong Kong.

Main Features of the Judiciary

Read the most important characteristics of the Judiciary system in Hong Kong here.

Hong Kong Judicial Structure

Report of the Court Organization and Jurisdiction in Hong Kong.
The Courts in Hong Kong may be divided into:

• High Courts

Description of the functioning of high courts in Hong Kong.

• Lower Courts

Summary of the roles of courts of lesser rank.

Sentencing

Information about rules that influence sentencing in Hong Kong.

Participants in the Administration of Justice

Survey about the players in the Administration of Justice in Hong Kong and other countries.

Judges

Information about the impartial administration of justice, the independence and status of the judiciary and other issues related to Judges in Hong Kong.

Public Prosecutors

The role of those government officials who represent, in Hong Kong, legal authorities (often prosecuting criminal actions in Hong Kong and Asia).

The practice of law

More about the practice of law in Hong Kong and Asia.

The legal professions

Outline of the legal professions in Hong Kong and Asia.

Practitioners (Lawyers and others)

Learn about the legal role of practitioners, specially lawyers.

Notary-Public in Hong Kong

Overview about Public Notaries practising in Hong Kong.

Court reporter – Clerks

Overview of Court reporters and Clerks in Hong Kong and Asian courthouses.

Civil Law Procedure

Outlook of the main features of the Hong Kong civil process, including:

Pretrial Proceedings in Hong Kong

Information about what pretrial proceedings consist of.

The Trial in Hong Kong

Review of the judicial examinations in civil or criminal actions in Hong Kong.

Civil Litigation

Overview of the steps of litigation in Hong Kong, the litigator’s role and the types of civil litigation in the country here.

Evidence

Evidence law outline in Hong Kong.

The Judgment

Outlook of the tribunal decisions in Hong Kong. For Judgments which are of significance as legal precedents on points of law in Hong Kong, see precedents.

The Effect of the Judgment

Overview of effects and recognition of a valid judgment delivered by a court of competent jurisdiction in Hong Kong.

Legal Remedies in Hong Kong

Enforcement of a legal right ordered by the court. See also the Judicial Relief definition.

Appeals – Judicial Review

Description of the Appeals process and the Judicial Review process of challenging the lawfulness of decisions in Hong Kong.

Criminal Law Procedure

Observation of the Criminal Process.

The Investigation of Crime

Scope of the investigation of crimes:

• Preparatory Investigation.
• Preliminiary Investigation.
• Final Investigation(Trial).

The Prosecution of Crime

Crime Prosecution.

Criminal Trials in Hong Kong

Laws and rules of the administration of justice when a person has been accused of a crime.

Appeals – Judicial Review

When a party files an appeal, asking to review the case:

• Criminal Appeals in Hong Kong.
• Legal Review.

Alternative Dispute Resolution in Hong Kong

Method of resolving disputes out-of-court (ADR).

Private Law

Family Law in Hong Kong

Guide to Marriage Law, Succession Law and other Family Law topics in Hong Kong.

Contract Law in Hong Kong

Contracts Law outline in Hong Kong.

Tort Law in Hong Kong

Regulating claims by civil wrongs that result in an injury or harm.

Property Law in Hong Kong

Real property and Personal property law in Hong Kong.

Copyright and Industrial Property

Survey of industrial and intellectual property laws in Hong Kong.

Foreign Trade

Regulation of Foreign Trade in Hong Kong and Asia.

Business Law in Hong Kong

Besides commercial law and the law of corporations and other entities, this guide provides comprehensive information about:

• Business Law in General in Hong Kong.
• Law Governing Conduct of Business.
• Laws on Foreign Capital and Investment in Hong Kong, including incentives.
• Regulation of companies, corporations and other business organizations in Hong Kong.
• Private International Conflict of Laws in Hong Kong and Asia.

Criminal Law in Hong Kong

Penal law involves prosecution for a crime in Hong Kong and Asia. Find out more.

Family Law in Hong Kong

Family legal issues including:

• Divorce and separation
• Child protection, custody, support and access
• Adoptions
• Property Division

Public Law

More about Public Law here.

Administrative Law

Report of the branches of the Administrative law, including Environmental law.

Administrative Processes

Administrative Processing in Hong Kong and Asia.

Taxation

Taxation in Hong Kong explained.

Labor Law

Overview of the labor law and social security in Hong Kong.

Asia Legal Systems

• The Constitutional Systems and Traditions of Asia.
• Asian history and cultural development.
• Reception of transplanted legal systems in Hong Kong and Asia.
• English Glossary and Dictionary of Selected Legal Terms of Hong Kong

Further Resources

About the Author

Salvador Trinxet Llorca is a law writer, professor and lawyer specialized in comparative and international law.

See Also

• Legal Systems
• Comparative Law Contents
• Hindu Law in General
• Chinese Law in General
• Common Law Systems
• Code Law Systems
• Socialist Legal Systems
• English Law System
• English Common Law
• Rules
• International Customary Law
• Islamic Law
• Legal pluralism
• Rule of law
• Adversarial System
• Inquisitorial Legal System
• Legal Pluralism
• Legal Positivism

References and Further Reading

• An Introduction to the Hong Kong Legal System (3rd ed.)
• Introduction to Law in the Hong Kong (1996)
• The Sources of Hong Kong Law (1994)
• Comparative law in a global context : the legal systems of Asia and Africa, Werner Menski
• Asian legal systems : law, society, and pluralism in East Asia, Poh-Ling Tan
• Philanthropy and law in Asia : a comparative study of the nonprofit legal systems in ten Asia Pacific societies, Thomas Silk
• Law and legal institutions of Asia : traditions, adaptations and innovations, E Ann Black; Gary F Bell
• Law, capitalism and power in Asia : the rule of law and legal institutions, Kanishka Jayasuriya
• Asia-Pacific legal development, Douglas M Johnston and Gerry A Ferguson
• Modern legal systems cyclopedia, Kenneth R Redden and William Emerson Brock
• Constitutionalism in Asia : Asian views of the American influence, Lawrence Ward Beer
• The judicialization of politics in Asia, Björn Dressel
• East Asian Law: Universal Norms and Local Cultures
• Law, Capitalism and Power in Asia : The Rule of Law and Legal Institutions
• Doing Business in Asia (updated regularly)
• Copyright Law and the Information Society in Asia
• Insolvency Law in East Asia
• Intellectual Property Law in Asia
• A Legal Guide to Doing Business in the Asia-Pacific

Selected Print Sources

The Annotated Ordinances of Hong Kong
Commercial Laws of the World : Hong Kong (1976)
Constitutional Law : Hong Kong (updated regularly)
Contracts : Hong Kong (updated regularly)
Corportations and Partnerships : Hong Kong (updated regularly)
Criminal Law : Hong Kong (updated regularly)
Criminal Law in Hong Kong (2003)
Cyber Law : Hong Kong (updated regularly)
Environmental Law : Hong Kong (updated regularly)
Financial Markets in Hong Kong : Law and Practice (2006)
Halsbury’s Laws of Hong Kong (updated regularly)
Hong Kong Law Reports and Digest (updated regularly)
Hong Kong Data Privacy Law : Territorial Regulation in a Borderless World (2nd ed.)
Intellectual Property Rights Hong Kong SAR and People’s Republic of China
Internet Law in Hong Kong
Principles and Practice of Civil Procedure in Hong Kong
Tax Laws of the World : Hong Kong (updated regularly)
Tort Law in Hong Kong
Transport Law : Hong Kong (updated regularly)

Journals

• Asia-Pacific Development Journal
• Asia-Pacific Journal on Human Rights and the Law
• Asian Law Journal
• Australian Journal of Asian Law
• Hong Kong Law Journal

Corporation law: Hong Kong resources
Indian Legal System
Bangladesh Legal System