The Magistrates’ Courts come at the bottom of the hierarchy and deal with most minor criminal cases. Its primary jurisdiction is over summary offences, though some indictable offences are dealt with summarily. The court is restricted in sentencing power, being able to imprison an offender for up to two years and impose a fine of no more than HK$100,000 unless legislations specify a greater fine.
Going up the hierarchy, the District Court has limited civil and criminal jurisdiction. It can hear actions in contract and tort for claims in damages from HK$50,000 to HK$1 million, and for recovery of land where the rateable value does not exceed HK$240,000. The District Court has wide jurisdiction in criminal cases, trying more serious offences with the exception of those within exclusive jurisdiction of the Court of First Instance such as murder and genocide. It is limited to a maximum penalty of seven year’s imprisonment.
The Court of First Instance (CFI) together with the Court of Appeal (CA) constitute the High Court. The CFI has unlimited jurisdiction in both civil and criminal matters. For original jurisdiction in civil matters, the claim is for an amount in excess of HK$1 million. In criminal matters, the CFI tries the most serious criminal offences such as murder and manslaughter. Criminal and civil appeals from the District Court and the CFI are heard by the CA.
The Court of Final Appeal (CFA) is the highest court in the judicial system. Under section 4 of the Court of Final Appeal Ordinance, it does not have any jurisdiction to hear cases involving acts of state such as defence and foreign affairs, conferring Article 13 of the Basic Law which states that Hong Kong’s foreign affairs are the responsibility of the Central People’s Government. Apart from this restriction, the Court has significant power and according to Article 158, it can interpret the Basic Law. However, when an issue arises which affects the relationship between Hong Kong and China or concerns a matter that is within the responsibility of the Central People’s Government, the courts are required to seek an interpretation of the Basic Law from the Standing Committee through the CFA. This is reflected in cases 2 concerning the right of abode of mainland children and the proper interpretation of the Basic Law.
The central government retains the power to enact and amend the Basic Law (BL159). It also retains the power to review local legislation (BL17), and to apply national laws to HKSAR (BL18) under certain conditions only, and enjoys the power to interpret the Basic Law (BL158). Therefore, some decisions of the National People Congress are binding the courts of Hong Kong. In the case of Chan Kam Nga1, the Standing Committee of National People’s Congress (SCNPC) interpreted the provisions regarding Article 24 following a request by the Chief Executive after a decision made by the CFA in the previous case appeared unable to reflect the true legislative intent of the Basic Law. Despite heavy criticism regarding the weakening of the degree of autonomy, the SCNPC’s interpretation of Basic Law was revealed to be superior to the decision of the CFA and the CFA ruled that it was bound by the Standing Committee’s interpretation.
Article 19 (2) also mentions that Hong Kong courts are restricted by ‘previously enforced principles’. There are a number of legal principles from the pre-1997 regime that are maintained in current judicial system. The first one, namely the ‘stare decisis’, ultimately governs the hierarchical court system of Hong Kong and confirms its Doctrine of Precedent stance. ‘Vertical stare decisis’ is an important principle that lower courts must follow the decision of a higher court where the case is similar in fact and law. Therefore, the CA is bound by decisions of the CFI and so on. The role of setting precedents are the responsibility of the higher courts and it is not possible for a lower court to refuse a higher court’s decision unless it can distinguish the case on its facts. Courts of equal status are encouraged to follow decisions made at the same level of authority and is reflected by the principle of ‘horizontal stare decisis’.
‘Trial by jury’ is another legal principle that limits the power of judges. It is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge. This principle of interjecting community norms and values into judicial proceedings and legitimizing the law by providing opportunities for citizens to validate criminal statutes advertently restricts the power of the judiciary. The most serious criminal offences are tried by a judge of the CFI, sitting with a jury of 7 or 9 people. In some civil cases, a party may elect to have the issues of fact tried by a jury.
Some Chinese customary laws and customs continue to exist after handover according to Article 8 of Basic Law. Occasionally judges have to follow them when making judgments on cases related to land rights in the New Territories (BL40). The application on this principle acts as another restriction on the judiciary system.
As we now see, the Hong Kong court system maintains its life through the transition of regimes. Each court is bound by its own technical jurisdiction, as prescribed by the legal system previously enforced as well as the Basic Law and national laws. Previously maintained legal principles also preserve the working of the hierarchical system and bind courts’ authorities. This is how Article 19 (2) is implemented to form the state of the current court system.
Bibliography:
Ian Dobinson, ‘Introduction to Law in the Hong Kong SAR’
Michael C. Davis, ‘Interpreting Constitutionalism and Democratization in Hong Kong’
www.judiciary.gov.hk
Chan Kam Nga & Others v Director of Immigration [1999] 1 HKLRD 304
Ng Ka Ling v. Director of Immigration [1999] 1 HKLRD 315
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Chan Kam Nga & Others v Director of Immigration [1999] 1 HKLRD 304
Ng Ka Ling v. Director of Immigration [1999] 1 HKLRD 315
