Civil and Criminal Procedure Laws in Hong Kong

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Table of Contents

Introduction
Criminal Proceedings in Hong Kong
Civil Proceedings in Hong Kong
Conclusion
Bibliography
Footnotes

Introduction

Hong Kong’s legal proceedings (and law in general) are based on nomocracy. The concept simply means that the rule of law is the supreme authority in the land. The rule referred to in this case defines the behaviour of individuals in a given society. The law is contained in Hong Kong’s basic legal structure. It is the document that serves as the constitution of the People’s Republic of China.¹ The legal system used in this country is similar to those used in the Commonwealth nations. However, the case is different in the People’s Republic of China. In this country, the legal framework varies with those used in other parts of the world with regards to ‘akin’. The variation is brought about by the influence of socialist laws and Marxist ideologies on Chinese society.²

There are various legal statutes used in Hong Kong. They include, among others, criminal, civil, constitutional, and administrative laws. In this paper, the author will dwell on criminal and civil cases. The two are some of the major laws used in Hong Kong.

According to Young, the difference between the two laws is pinned on the objects pursued by the legal frameworks.³ The aim of a given law is either to redress or to punish. To this end, it is noted that the fundamental objective of civil law is to redress. Such a goal is achieved by compelling the wrongdoer to compensate the affected individual. On the other hand, criminal law is used to punish the culprit. It does this by providing a strong inducement for reformation. The objective is to prove to the public that wrong deeds will always be punished.⁴

Criminal Proceedings in Hong Kong

Overview

In Hong Kong, a criminal prosecution can be initiated individually. However, in most cases, it is the Secretary of Justice who initiates a formal criminal hearing. There are two things that this official must consider before putting into motion a formal prosecution. First, they must ensure that there is strong evidence that will make the case stand in a court of law. Second, the secretary must ensure that the case benefits the society as a whole.⁵ To this end, the officer should make sure that the proceedings are not carried out to benefit one individual. Rather, they should improve the welfare of the community.

There are a set of rules involved in the prosecution process. After collecting enough evidence, the case is then presented by the secretary to an impartial court. The accused is given an opportunity to defend themselves during the court proceedings. After hearing, the court is expected to determine whether the defendant is guilty or not. Depending on the outcome, the legal authority will provide adequate remedies and appropriate orders to address the issue. Such remedies may lead to a procedural law, substantive ruling, or judgment.⁶

Specific Cases

A perfect example of a criminal case is State vs. Carol Chung. In this case, Carol Chung was accused of drug trafficking. She was arrested in Hong Kong Airport with 52 grams of cocaine. She claimed that it was a medicine she was given in a clinic in France to treat a mental condition. Her husband had abandoned Chung and her children. She informed the authorities that the cocaine was meant to help her cope with job and children following the breakdown of her marriage.

Chung was arrested and charged with one count of trafficking in dangerous drugs, namely cocaine. The offence was contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134. Chung’s barrister addressed the judge and requested the client to be charged on the basis of the first account of her arrest. The lawyer insisted that the drug was for her own use to help her cope with life. The judge refused to grant the request made by the barrister. Instead, the lady was sentenced to 8 years imprisonment.

There are many options available in addressing Chung’s case. Some of them are analysed below:

Principle of Presumption of Innocence

In relation to this provision, Chui asserts that every person is assumed to be innocent until proven otherwise.⁷ In this case, the judge or the Secretary for Justice bears the burden of proof. The burden is always in the hands of the prosecutor and not the accused. The latter may decide to remain silent. In addition, they may request for writ of habeas corpus. The individual charged with a given offence may also demand for their right of bail. In some instances, the defendant may plead with the court to exercise their right to self-incrimination during the procedural process. All of these are the various options that Chung can choose from.⁸

To implicate the accused, the evidence must fulfil the element of beyond reasonable doubt. On the other hand, this principle of beyond reasonable doubt must be consistent with the presumptions made in the charges preferred against the offender. In this context, Chung should be given an opportunity to defend her innocence and to comment on anything brought before the court against her.⁹

The presumption is very crucial in any case. The same is made evident in the R v Oakes [1986] 1S.C.R. 103 case. The case of Edwin Oaks shares some similarities with Chung’s charges. The presumption protects the accused in different ways. The fundamental liberty and human dignity is preserved under this element. The gravity of the consequences of criminal offences is devastating. Among others, criminal misconducts can lead to loss of physical liberty. They can also result in social stigma and ostracism from the society. In light of these consequences, the presumption element must ensure that the accused is subjected to a fair trial until they are proven guilty beyond reasonable doubt.¹⁰

The principle of presumption is accorded recognition in both government and public domains. Various statutes confirm this assertion. One of them is Hong Kong’s Bill of Rights Ordinance. Under article 11(1), the constitution provides that any person charged with a criminal offence is presumed innocent until proven guilty. Chung can pursue this channel to avoid being taken into police custody.¹¹

In article 5(4) of the Hong Kong Bill of Rights, an accused has the right to ask for writ of habeas corpus. The bill addresses the issue of those persons who are denied their rights, especially when in custody. Such individuals can take legal action against the authorities in a court of law. In this context, the court has to release the accused without delays. The offender can only be incarcerated if the detention is made lawful. Chung can exploit this alternative. She can argue on the basis of the first account. To this end, they can try to convince the courts that the cocaine was for medication purposes.¹²

A writ of habeas corpus is also referred to using a different name. Some analysts regard it as the great writ. It simply means “(the accused) may have the body to face scrutiny or cross-examination”. The great writ is a usually a court order. It permits a prison officer to release a prisoner and present them before a court. The power is bestowed on the court officials under the Magistrate Ordinance (MO) act section 79(1). It is also contained under the Police Force Ordinance (PO) act section 53(3). Chung can apply this argument on the grounds that she was unlawfully detained by the courts.¹³

Civil Proceedings in Hong Kong

Introduction to Civil Law

Civil procedure or litigation is a legal process that is significantly different from criminal proceedings. The process involves the resolving of contractual disputes and breach of relationships. In civil law, proceedings can be instituted by the government against a person or a private corporation. The legal procedure may also be initiated by an individual against another. According to Wilkinson and Cheung, civil cases are easier to discharge compared to criminal proceedings.¹⁴ Unlike in criminal cases, standard of proof in civil processes is based on balance of probabilities. The regulations involved are found in the Rules of the High Court (RHC) and Rules of the District Court (RDC).¹⁵

Examples of Civil Proceedings

In Hong Kong, guidelines for civil cases are prescribed in 0.1A, r.1, RHC/RDC, and r.1(e). The guidelines are especially efficient in settling contractual disputes. For the sake of proportionality, a cost benefit analysis can be obtained from iRiver Hong Kong Ltd v Thakral Corp (HK) Ltd CACV 252/2007. In this case, the court expressed regrets that the parties did not engage in mediation before taking legal action against each other. The first course of action in case of disputes should involve engaging in mediation.¹⁶

A perfect example of a civil case is the one of Wizard Co. v Paul Wu. The accused was a photographer. They were alleged to have engaged in a breach of contract after they were contracted to provide professional photographs for all of Wizard Co’s 2012 marketing literature. The trial ended well and Mr. Wu was asked to pay HK$ 6.5 million to the complainant. The payment included damages, interests, and costs. However, 28 days down the line, Mr. Wu had not complied with the court order. An enforcement action was required to make him make the payments.

Enforcing Civil Law

There are various avenues used to enforce this legal framework. In light of this, a number of remedies can be adopted by one party in a situation where the other individual has failed to meet their obligations. Such courses of actions exist regardless of whether or not a deviation from the contract gives rise to a right to rescind. In this context, the injured party was Wizard Co. The company had the right of action of damages. In many contractual relationships, a payable sum is provided in case there is a breach by one of the parties. In this case, however, there was no such providence. It is important to note that different contracts result in unique and special forms of remedies. A case in point is Buther v Wolfe (1997) 1 FLR 334. Under such circumstances, costs can be agreed upon after negotiations if the defendant feels that they are too high.¹⁷

With regards to these remedies, Mr. Wu failed to honour the court obligations. According to Yuan, this amounts to contempt of court on the part of the defendant.¹⁸ Yuan asserts that such a conduct is an act committed by a person in wilful contravention of the authority or dignity of a lawful court. In addition, the action impedes and frustrates the court in the process of exercising its mandate. There are two kinds of contempt, which are also evident in Hong Kong civil proceedings. The first includes those commissions made inside the court (summary). The second category involves violations taking place outside the court (plenary). The latter requires prior notifications to the defendant before punishment is meted out.¹⁹

The defendant in this case was given 28 days to comply, but he failed to honour the court orders. Further investigations revealed that the amount of money that was in the possession of Mr. Wu, both in cash and in form of property, was about HK$36,940,000. A similar scenario occurred in the legal matter involving Kessler v. Commonwealth, 18 Va. App. 14, 441 S.E.2d 223 (1994). During the proceedings, the court found the defendant in civil contempt after failing to comply with the judgment passed by the court. The accused refused to pay for child support even after being ordered to do so.²⁰

In his defence, Mr. Wu has the right to file evidence that validates his refusal to pay the fines. Some of the proof that can be deduced includes lack of notice that orders the defendant to comply. In addition, non-compliance may arise from inability to conform on the part of the accused as a result of circumstances beyond their control. In such a scenario, the order may be rendered null and void. The same happened in the case involving Street v. Street, 24Va. App. 14, 480 S.E.2d 118 (1997). In this matter, the case was overturned and the defendant did not have to pay the fines.²¹

It is clear from the above discussions that civil contempt is a criminal offence in itself. Consequently, it requires a standard proof. The need for proof beyond reasonable doubt is evident in the ruling made by Lord Denning M.R. In Re Bramblevale Ltd. (1970) 1 Ch. 28 at 137, the judge asserted that failure to satisfy a judgment is a crime. It may lead to imprisonment, meaning that the prosecution must prove it effectively. There are instances where the defendant fails to convince the court about their failure to comply. Under such circumstances, possible sanctions are implemented. The proceedings are stipulated in 0. 45, rr. 1(1) and 5(1)(a) of the Rules of the Supreme Court (RSC).²²

In the matter highlighted above, it is important to apply possible sanctions to secure the fines. There are various options that the court may use to deal with the offender. They include imprisonment and committal of directors and officers. However, Mr. Wu is not listed in any directorate post in Hong Kong. His assets may be sequestrated to secure the fines. A number of precedents provide grounds on which costs and sanctions can be applied. One of them is the case involving Town Planning Board v Society for Protection of the Harbour (no.2) (2004) 2 HKLRD 95 and (CFA).²³

Sanctions for contempt of court are applied on the basis of the provisions contained in the Magistrate Ordinance. In common practice, a person is committed until obedience is achieved. In Cap 227 of MO, guidelines for imprisonment are provided for failure to pay fines. Incarceration is viewed as sine die and not a fixed term. For instance, obstinate contemnors may complete their term in prison without non-compliance to the initial court order. As such, judgments should not be made to achieve this. Such legal experts as Rogers are of the opinion that this clause should be abolished in the future.²⁴ Rogers asserts that civil contempt proceedings are meant to attain compliance and not to punish the contemnor. The case involving Director of Building and Land v Shun Fung Ironworks (1995) 2HKLR 501(PC) is an example of this. In this legal matter, the court sought assistance for sanction purposes (Cap 227 s 67 of MO).²⁵

Conclusion

In this paper, criminal and civil proceedings in Hong Kong were analysed. In the former, standard of proof is an important element as far as culpability is concerned. For instance, the defendant in case one explained that the cocaine in her possession was for medicinal purposes. However, the judge ruled against this explanation by sentencing her to 8 years in prison. Various options, including bail, have been explored in efforts to overturn the ruling. The second case involved a breach of contract. The defendant was fined HK$ 6.5 million as a result. However, the accused failed to obey the court order. To achieve compliance, Mr. Wu was charged with the offence of contempt of court.

Bibliography

Becker, L, The 2011 guide to litigation & dispute resolution, Euromoney Institutional Investor, London, 2011.

Chan, P, Hong Kong civil procedure, 7th edn, Sweet & Maxwell Asia, Hong Kong, 2009.

Chui, W, Understanding criminal justice in Hong Kong, Cullompton Willan, London, 2008.

Fisher, MJ & DG Greenwood, Contract law in Hong Kong, Hong Kong University Press, Hong Kong , 2007.

Gaylord, MS, D Gittings & H Traver, Introduction to crime, law and justice in Hong Kong, Hong Kong University Press, Hong Kong, 2009.

Hardinge Stanley Giffard Earl of Halsbury, Halsbury’s laws of Hong Kong, Thomson/West, Hong Kong, 2011.

Jackson, M, Criminal law in Hong Kong, Hong Kong University Press, Hong Kong , 2003.

Lau, D, Civil procedure in Hong Kong: a guide to the main principles, Sweet & Maxwell, Hong Kong, 2010.

Mau, SD, Hong Kong legal principles: important topics for students and professionals, Hong Kong University Press, Hong Kong, 2006.

McFadden, D, Hong Kong civil procedure, Sweet & Maxwell, Hong Kong, 2012.

Rogers, M, Hong Kong civil justice reform practice manual, Sweet & Maxwell/Thomson Reuters, Hong Kong, 2009.

Wilkinson, M & C Booth, The student guide to civil procedure in Hong Kong, LexisNexis, Hong Kong, 2002.

Wilkinson, M & E Cheung, A guide to civil procedure in Hong Kong, 4th edn, LexisNexis, Hong Kong, 2011.

Young, S, Hong Kong criminal law handbook, 3rd edn, LexisNexis, Hong Kong, 2008.

Yuan. M, Recognition and enforcement of foreign judgments in civil and commercial matters in the PRC, Hong Kong, Macau and Taiwan, Hephaestus, Groningen, 2007.

Footnotes

MS Gaylord, D Gittings & H Traver, Introduction to crime, law and justice in Hong Kong, Hong Kong University Press, Hong Kong, 2009.
ibid.
S Young, Hong Kong criminal law handbook, 3rd edn, LexisNexis, Hong Kong, 2008, p. 33.
ibid, p. 44.
Gaylord et al., p. 24.
W Chui, Understanding criminal justice in Hong Kong, Cullompton Willan, London, 2008, p. 45.
ibid, p. 46.
ibid.
Hardinge Stanley Giffard Earl of Halsbury, Halsbury’s laws of Hong Kong, Thomson/West, Hong Kong, 2011.
M Jackson, Criminal law in Hong Kong, Hong Kong University Press, Hong Kong , 2003, p. 14.
ibid, p. 25.
SD Mau, Hong Kong legal principles: important topics for students and professionals, Hong Kong University Press, Hong Kong, 2006, p. 26.
Young, p. 72.
M Wilkinson & E Cheung, A guide to civil procedure in Hong Kong, 4th edn, LexisNexis, Hong Kong, 2011.
L Becker, The 2011 guide to litigation & dispute resolution, Euromoney Institutional Investor, London, 2011, p. 53.
Wilkinson & Cheung, p. 43.
M Wilkinson & C Booth, The student guide to civil procedure in Hong Kong, LexisNexis, Hong Kong, 2002,
M Yuan, Recognition and enforcement of foreign judgments in civil and commercial matters in the PRC, Hong Kong, Macau and Taiwan, Hephaestus, Groningen, 2007, p. 45.
ibid, p. 31.
D McFadden, Hong Kong civil procedure, Sweet & Maxwell, Hong Kong, 2012, p. 58.
D Lau, Civil procedure in Hong Kong: a guide to the main principles, Sweet & Maxwell, Hong Kong, 2010, p. 94.
MJ Fisher & DG Greenwood, Contract law in Hong Kong, Hong Kong University Press, Hong Kong , 2007.
P Chan, Hong Kong civil procedure, 7th edn, Sweet & Maxwell Asia, Hong Kong, 2009, p. 24.
M Rogers, Hong Kong civil justice reform practice manual, Sweet & Maxwell/Thomson Reuters, Hong Kong, 2009, p. 39.
ibid.

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