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In the era of sentencing guidelines, the punishment for traffickers is primarily based on the offenders’ culpability and the drug weight. Existing literature tend to focus on the issue of proportionality as it relates to the roles and culpability of offenders. However, little attention has been drawn to the quantity of drugs. England and Wales have incorporated offender roles into their sentencing guidelines, while Hong Kong uses drug tariffs strictly based on drug weight to calculate the starting point of a sentence. Using a novel equation called ‘the arithmetic starting point of sentence’, this study examines the starting sentence based on each gram of drugs by undertaking a comparative analysis of the respective jurisdictions. The results show that both jurisdictions have adopted sentencing guidelines that exhibit a logarithmic curve. This implies that the scale used to measure the quantity of drugs is disproportionate, penalising smaller quantities more harshly than larger quantities.
Previous chapters in this book have focused on domestic (or municipal) law within Hong Kong. This chapter examines the interface between Hong Kong law and international law and Chinese law (PRC law). It looks at the distinct international legal personality that Hong Kong possesses, Hong Kong’s engagement with international entities and the application of international law in Hong Kong. Previous chapters have discussed certain aspects of the interface between Hong Kong and the PRC legal system, and this chapter builds on this by focusing on mutual legal assistance between the two legal systems, access to the Mainland market for legal services from Hong Kong and cross-border crime.
With the increasing popularity of alternative methods of resolving disputes to lessen the burden on courts, a separate chapter must be dedicated to this topic. One may not typically think of alternative methods of resolving disputes as part of the legal system, but this chapter shows otherwise. Particularly with the Civil Justice Reform, alternative dispute resolution has played and will continue to play an even larger role in solving legal disputes in Hong Kong. The two main methods of alternative dispute resolution, namely mediation and arbitration, are examined.
This chapter looks at law at an abstract level and the fundamental questions of ‘What is law?’ and ‘Why have laws?’ are explored by discussing the functions and concepts of law. This chapter examines the macro and micro functions of law, as well as the major perspectives of law including natural law, legal positivism, sociology of law and critical legal theory. It concludes by exploring various classifications of legal systems and the way in which the law is divided within them, such as the difference between the common law and civil law systems, national and international law, substantive and procedural law, and public and private law.
While legislation is enacted by the Legislative Council (or under its authority), the courts have a role in the interpretation of legislation. This chapter discusses the various common law approaches to statutory interpretation that are likely to be adopted by Hong Kong courts. Moreover, this chapter goes through the aids to interpretation within an ordinance, external aids to interpretation, presumptions which protect basic values, interpretation of the Basic Law and resolving conflicts found in bilingual legislation. A case study is used to illustrate how the courts balance different interpretive considerations. Recognising how judges interpret laws will help hone the skills of legal reasoning (thinking like a judge).
Where do lawyers look to when they wish to ascertain what the law is on a particular matter? This chapter goes over the various sources of law in Hong Kong. It starts at the top with the Basic Law, which is sometimes referred to as the ‘mini-constitution’ of Hong Kong. It covers the five interpretations of the Basic Law by the Standing Committee of National People’s Congress (NPCSC). It then takes readers through legislation, including primary and secondary legislation, and through the different parts of a statue. Case law is then examined, along with the different parts of a reported case, highlighting the parts of a judgment that constitute law. Lastly, Chinese customary law and national laws of the People’s Republic of China that are applied in Hong Kong are discussed.
This chapter outlines the system and structure of the courts in Hong Kong and discusses the concept of judicial precedent. It leads readers through the hierarchical structure of the courts and its historical development during the pre- and post-1997 periods. The different levels of the courts are examined including the Court of Final Appeal (CFA), the High Court, the District Court and Magistrates’ Courts. Different tribunals that exercise judicial power are also reviewed. The second section of this chapter deals with judicial precedents, an essential feature of the common law. The doctrine of precedent as it applies in Hong Kong is detailed, taking readers through vertical and horizontal stare decisis for each level of the courts. The status of English and overseas decisions, including Privy Council decisions in present-day Hong Kong, is discussed.
This chapter provides a general picture of the criminal justice system in Hong Kong. It highlights the roles and powers of key criminal justice agencies including the Hong Kong Police Force (HKPF), the Independent Commission Against Corruption (ICAC) and the prosecution. It includes discussion of police powers and prosecutorial decision-making. This chapter also goes through the criminal procedure, drawing attention to key decision points such as bail, court venue, the plea and the standard of proof. It concludes by looking at the various sentencing options at the court’s disposal.
This chapter provides an overview of the system of governance in the Hong Kong Special Administrative Region (HKSAR). It introduces readers to the fundamental concepts of ‘one country, two systems’ and ‘high degree of autonomy’ under the Basic Law, which provide the framework for the allocation and exercise of responsibilities over Hong Kong by the central authorities and the Hong Kong government. Within the sphere of Hong Kong’s autonomy, the Basic Law provides for the exercise of governmental powers by three arms of government: the executive, the legislature and the judiciary. The powers and functions of these three arms are outlined in this chapter, together with discussion of the doctrine of ‘separation of powers’.
This chapter discusses how laws are made in Hong Kong by studying the process of legislation. Issues are discussed surrounding how the Basic Law limits the scope of certain legislation and who has the authority to create legislation. Readers are taken through the step-by-step process of lawmaking in Hong Kong from the proposal to how a bill achieves status as law in Hong Kong. Both the passage of primary legislation and secondary legislation are illustrated. The interactions and balance between branches of government and between governments (the HKSAR and the PRC) are exemplified in the process of legislation.
The first chapter outlines the aims of the book, which is to provide an introduction to the Hong Kong legal system especially for first-year law students, but also for students of other disciplines, and practitioners and scholars from other jurisdictions who are looking for a comprehensive and user-friendly overview of Hong Kong’s legal system. It also highlights the key elements of that system, discussing its rules and principles, namely the rule of law, separation of powers and the independence of the judiciary, as well as legal institutions and legal personnel. This chapter traces the historical development of Hong Kong’s legal system, from the acquisition of Hong Kong by the British and the importation of English law (including common law) into colonial Hong Kong to the transfer of sovereignty of Hong Kong to the People’s Republic of China (PRC) in 1997 and the present-day legal framework under ‘one country, two systems’.
This chapter focuses on the civil justice system in Hong Kong. It provides readers with an overview of civil litigation and its processes, from starting an action to remedies. Key stages of civil procedure, such as summary and default judgment, discovery and injunctions, are highlighted and discussed. The drawbacks to civil litigation are also examined. The second part of this chapter looks at the Civil Justice Reform that occurred in Hong Kong in 2009, discussing the changes that were implemented in order to enhance efficiency, cost-effectiveness and fairness for individuals going through the civil justice system in Hong Kong.
This book provides an introduction to the legal system in Hong Kong. Understanding Hong Kong's legal system today requires both an understanding of the British origins of much of the laws and legal institutions as well as the uniquely Hong Kong developments in the application of the Basic Law under 'one country, two systems'. These features of the Hong Kong legal system are explored in this book, which takes into account developments in the two decades or so of the new legal framework in Hong Kong since the 1997 handover. In providing both an exposition of the legal institutions in Hong Kong and legal method under Hong Kong's legal system (including practical guidance and examples on case law, statutory interpretation and legal research), this book is ideal for first-year law students, students of other disciplines who study law and readers who have an interest in Hong Kong's unique legal system.