© University of South Australia 2007 M-1 INTRODUCTION TO LAW SESSION 1 RICK SARRE & KAREN EARLE.

M-1© University of South Australia 2007

INTRODUCTION TO

LAW

SESSION 1 RICK SARRE & KAREN EARLE


INTRODUCTION TO LAW

The basics of the common law

legal system, the law of contract

and the law of agency


Section A Topic 1: The common law legal system Topic 1: The common law legal system

and its reception into HKSAR; law-and its reception into HKSAR; law-making by legislationmaking by legislation

Topic 2: Law-making by judges and the Topic 2: Law-making by judges and the doctrine of precedentdoctrine of precedent

Topic 3: Law-making by judges and the Topic 3: Law-making by judges and the principles of statutory interpretationprinciples of statutory interpretation


Section ATopic 1: The common law legal

system Law: devised by parliaments and courts Law: devised by parliaments and courts

and recognised by society as having and recognised by society as having authorityauthority

‘‘Common’ law is a legacy of the Norman Common’ law is a legacy of the Norman conquest (in 1066) and a bid for conquest (in 1066) and a bid for consistencyconsistency

Hong Kong inherited its common law Hong Kong inherited its common law tradition from the English legal system.tradition from the English legal system.


Classification of world systems of law

Common law countries include Hong Kong, Common law countries include Hong Kong, Australia, India, United Kingdom, USA, Australia, India, United Kingdom, USA, New ZealandNew Zealand

Civil Code – European CodesCivil Code – European Codes Islamic law – Indonesia, Middle Eastern Islamic law – Indonesia, Middle Eastern

traditionstraditions Chinese – Chinese – Basic LawBasic Law tradition (which will tradition (which will

apply in HK from 2047 (Art 5 Basic Law)apply in HK from 2047 (Art 5 Basic Law)


Aims of a legal system

A good legal system endeavours to be A good legal system endeavours to be consistent, and consistent, and open andopen and fair and impartial, that is, the law fair and impartial, that is, the law should be applied to everyone equally, should be applied to everyone equally, without fear or favour. without fear or favour.


Aims of a legal system

Tradition: precedent (consistency)Tradition: precedent (consistency) Written rules: Ordinances (openness)Written rules: Ordinances (openness) ‘ ‘Equitable’ principles, applied by the Equitable’ principles, applied by the courts to do justice (fairness)courts to do justice (fairness)

Our common law heritage allows us to Our common law heritage allows us to bring all of these aims together.bring all of these aims together.


Overview of the HK SAR Legal System

Annexation of HK by England in 1843 led to Annexation of HK by England in 1843 led to ‘reception’ of the common law legal system - ‘reception’ of the common law legal system - Supreme Court Ordinance 1844Supreme Court Ordinance 1844

All relevant English common law, equity and All relevant English common law, equity and statute law applies in HK (as well as HK statute law applies in HK (as well as HK statutes) but only if applicable to HK statutes) but only if applicable to HK circumstances - circumstances - Application of English Law Application of English Law Ordinance 1966.Ordinance 1966.


Sources of Law in HKSAR

I. I. LegislationLegislation

II. II. Case-LawCase-Law (Topic 2) (Topic 2)

III. III. Basic Law (1990)Basic Law (1990)

IV. IV. Customary LawCustomary Law


I. Legislation

i). i). PRIMARY LEGISLATION: PRIMARY LEGISLATION: ORDINANCESORDINANCES

(also referred to commonly as Acts or Statutes (also referred to commonly as Acts or Statutes in many jurisdictions)in many jurisdictions)

““The Legislative Council of the Hong Kong The Legislative Council of the Hong Kong Special Administrative Region shall exercise Special Administrative Region shall exercise the following powers and functions:the following powers and functions:

(1) To enact, amend or repeal laws in (1) To enact, amend or repeal laws in accordance with the provisions of this Law accordance with the provisions of this Law and legal procedures” and legal procedures”

(Basic Law, Article 73)(Basic Law, Article 73)


Law-Making by Legislation (cont’d)

PRIMARY LEGISLATION (cont’d)PRIMARY LEGISLATION (cont’d) Draft Ordinance (“Bill”) presented to LegcoDraft Ordinance (“Bill”) presented to Legco Chief Executive decides whether Bill may be Chief Executive decides whether Bill may be

introduced in Legco (see Basic Law, Article 56)introduced in Legco (see Basic Law, Article 56) Several “readings” of the Bill and debate/amendmentsSeveral “readings” of the Bill and debate/amendments If the Bill is approved by Legco, it is published as an If the Bill is approved by Legco, it is published as an

Ordinance in the Ordinance in the Government Gazette Government Gazette ((“proclamation”“proclamation”))

Ordinance operates from date of publication or other Ordinance operates from date of publication or other date as may be stated in the proclamation.date as may be stated in the proclamation.



ii) SUBORDINATE (or DELEGATED) ii) SUBORDINATE (or DELEGATED) LEGISLATIONLEGISLATION

1.1. are laws drafted by a body that is empowered to are laws drafted by a body that is empowered to do so by Ordinance;do so by Ordinance;

2.2. may be regulations, rules or by-laws;may be regulations, rules or by-laws;

EXAMPLE: EXAMPLE: Urban Council OrdinanceUrban Council Ordinance empowers empowers the Council to make Regulations and By-Laws the Council to make Regulations and By-Laws



SUBORDINATE LEGISLATION (cont’d)SUBORDINATE LEGISLATION (cont’d)

- Procedure for making subordinate legislation is Procedure for making subordinate legislation is much simpler than for Ordinances;much simpler than for Ordinances;

- A draft of the proposed regulations, etc. is prepared A draft of the proposed regulations, etc. is prepared by the relevant body and submitted to the Legco;by the relevant body and submitted to the Legco;

- Automatically become law if no amendment is Automatically become law if no amendment is proposed within a period of 2 weeks;proposed within a period of 2 weeks;

- Take effect on date stated in a notice published in Take effect on date stated in a notice published in the the Government Gazette.Government Gazette.


Separation of powers

The doctrine of separation of The doctrine of separation of powers: a means to ensure justice … powers: a means to ensure justice … not autocratic rule.not autocratic rule.

Designed by the French in the 18Designed by the French in the 18thth century to ensure that one arm of century to ensure that one arm of government could not be law-maker, government could not be law-maker, judge, jury and executioner!judge, jury and executioner!


Separation of powers Legislature (Legislative Council or Legislature (Legislative Council or ‘Legco’)‘Legco’) Executive (Chief Executive, Executive (Chief Executive, appointed by Beijing, and the appointed by Beijing, and the Executive Council)Executive Council) Judiciary (District Courts and Judiciary (District Courts and Magistrates Courts, the Court of First Magistrates Courts, the Court of First Instance, Court of Appeal, and the Instance, Court of Appeal, and the Court of Final Appeal).Court of Final Appeal).


Separation of powers But the Chief Executive presides But the Chief Executive presides over the Legco and the Executive over the Legco and the Executive Council.Council.

So it is not a strict separation of So it is not a strict separation of powers.powers.


Separation of powers (cont’d) Like HKSAR, the Like HKSAR, the UK/Australian tradition is that UK/Australian tradition is that the separation is not as strict the separation is not as strict either. Compare the republican either. Compare the republican model operated by the USA, model operated by the USA, Israel and France.Israel and France.


Topic 2: Law making by judges: the doctrine of

precedentII. CASE LAWII. CASE LAW Judges interpret the lawJudges interpret the law In higher courts they make the law In higher courts they make the law

(overturn old law or create law (overturn old law or create law where none existed before)where none existed before)

Publish their reasons … these Publish their reasons … these become precedents.become precedents.


Benefits of precedent doctrine

ConsistencyConsistencyPredictability for legal advicePredictability for legal advice

but but it can be haphazardit can be haphazard as it relies as it relies upon cases being brought before the upon cases being brought before the courts.courts.


Key concept: The ‘ratio decidendi’

The ‘ratio decidendi’ attempts to The ‘ratio decidendi’ attempts to locate the actual locate the actual reason for the reason for the decisiondecision – this then carries forward as – this then carries forward as a principle that can be applied in a principle that can be applied in ‘like’ cases that come before the ‘like’ cases that come before the courts in future. Higher courts set the courts in future. Higher courts set the precedents and the lower courts precedents and the lower courts MUST follow them.MUST follow them.


‘Distinguishing’

The courts will be asked to The courts will be asked to ‘distinguish’ cases that are not ‘distinguish’ cases that are not ‘alike’.‘alike’.This is then where the argument This is then where the argument develops in court: which party develops in court: which party can convince the judge to apply can convince the judge to apply their precedents!their precedents!


A case where a precedent was made, then ‘followed’, then ‘distinguished’

Donoghue v StevensonDonoghue v Stevenson Grant v Australian Knitting MillsGrant v Australian Knitting Mills Griffiths v Peter Conway LtdGriffiths v Peter Conway Ltd


Hierarchy of the courts

A court cannot overturn a precedent of a A court cannot overturn a precedent of a higher courthigher court

Other cases from other jurisdictions may Other cases from other jurisdictions may be ‘persuasive’ or ‘influential’ but not be ‘persuasive’ or ‘influential’ but not ‘binding’.‘binding’.

In 1997, appeals to the Privy Council In 1997, appeals to the Privy Council were abolished.were abolished.


The Hong Kong Court System Hierarchy

- - Court of Final AppealCourt of Final Appeal (replaced (replaced the Privy Council as the highest the Privy Council as the highest and final court of appeal in July, and final court of appeal in July, 1997);1997);

- the - the High CourtHigh Court (comprises the (comprises the Court of Appeal and Court of Court of Appeal and Court of First Instance);First Instance);


Hierarchy (cont’d)

- - District CourtDistrict Court (has limited criminal and (has limited criminal and civil jurisdiction);civil jurisdiction);

- - Magistrates CourtsMagistrates Courts (originating courts (originating courts for all criminal cases);for all criminal cases);

- Specialist - Specialist TribunalsTribunals (eg., Small Claims (eg., Small Claims Tribunal; Lands Tribunal).Tribunal; Lands Tribunal).


Other roles

Outside of the court hierarchy Outside of the court hierarchy sits the sits the Ombudsman Ombudsman (directly (directly linked to Chief Executive, linked to Chief Executive, concerned with concerned with maladministration and Code of maladministration and Code of Access to Information).Access to Information).


Precedent rules

Under the doctrine of precedent, Under the doctrine of precedent, the Court of Appeal is bound by the Court of Appeal is bound by decisions of the Court of Final decisions of the Court of Final Appeal;Appeal;

And, the Court of First Instance is And, the Court of First Instance is bound by decisions of the Court bound by decisions of the Court of Appeal;of Appeal;


Precedent rules

Decisions of English Courts (e.g. Decisions of English Courts (e.g. the House of Lords) are not the House of Lords) are not binding but may be referred to;binding but may be referred to;

Courts at the same level are not Courts at the same level are not bound to follow their earlier bound to follow their earlier decisions, but do so normally in decisions, but do so normally in the interests of consistency.the interests of consistency.


Topic 3: Law-making by judges: the principles of statutory interpretation

Much more law now written as Much more law now written as Ordinances that require interpretationOrdinances that require interpretation

Written law states the law more clearlyWritten law states the law more clearly The Legco can make/change/repeal when The Legco can make/change/repeal when

neededneeded But to put every variation of But to put every variation of

circumstances into writing would be circumstances into writing would be impossible, therefore words are brief = impossible, therefore words are brief = problems of interpretation.problems of interpretation.


Issues of interpretation

Ambiguous language (what does Ambiguous language (what does ‘reasonable’ mean?)‘reasonable’ mean?)

Changes in terminology over time Changes in terminology over time (does ‘telephonic’ include internet?)(does ‘telephonic’ include internet?)

What happens if there are unintended What happens if there are unintended consequences?consequences?

The same principles apply to contractual The same principles apply to contractual interpretation, so they are worth interpretation, so they are worth reviewing!reviewing!


Principles of interpretation

The Literal rule – words are given their The Literal rule – words are given their actual meaning: actual meaning: Blucher’s caseBlucher’s case ‘ ‘Golden’ rule – literal rule, unless there is Golden’ rule – literal rule, unless there is an absurd result thereby: an absurd result thereby: Adler v GeorgeAdler v George The ‘Mischief’ rule – one can go to the The ‘Mischief’ rule – one can go to the extrinsic materials to see what the reason extrinsic materials to see what the reason was for the law in the first place: was for the law in the first place: Maritime Maritime v Poseidon.v Poseidon.


Other points

Interpretation and General Clauses Interpretation and General Clauses Ordinance, Ordinance,

s 19 Every ordinance to be interpreted s 19 Every ordinance to be interpreted “according to its true intent, meaning “according to its true intent, meaning and spirit”; and spirit”;

s 10B English & Chinese language texts s 10B English & Chinese language texts equally authenticequally authentic


III. THE BASIC LAW- Principle of “one country, two systems”Principle of “one country, two systems”- Hong Kong to remain a common law system Hong Kong to remain a common law system

for at least 50 yearsfor at least 50 years- 1984 Joint Declaration - international treaty 1984 Joint Declaration - international treaty

between Britain & China between Britain & China - 1990 Basic Law forms the basis of HKSAR 1990 Basic Law forms the basis of HKSAR

constitutional law, adopted by National constitutional law, adopted by National Peoples Congress of PRCPeoples Congress of PRC

- SAR v Ma Wai Kwan SAR v Ma Wai Kwan (1997) – Held: CL had (1997) – Held: CL had survived the change of sovereignty from UK to survived the change of sovereignty from UK to PRC.PRC.


IV. CUSTOMARY LAW““The laws previously in force in Hong Kong, The laws previously in force in Hong Kong,

that is, the common law, rules of equity, that is, the common law, rules of equity, ordinances, subordinate legislation ordinances, subordinate legislation and and customary lawcustomary law shall be maintained, except for shall be maintained, except for any that contravene this Law, and subject to any that contravene this Law, and subject to any amendment by the legislature of the Hong any amendment by the legislature of the Hong Kong Special Administrative Region” Kong Special Administrative Region”

Basic Law, Article 8Basic Law, Article 8(thus some old rules concerning merchants, (thus some old rules concerning merchants,

family law, inheritance, land settlement, family law, inheritance, land settlement, setting up a partnership may still have some setting up a partnership may still have some elements of customary law that are elements of customary law that are enforceable)enforceable)


Final important classification

Public law – government to Public law – government to government or government and government or government and citizen issuescitizen issues

Private law – matters requiring Private law – matters requiring resolution between private partiesresolution between private parties


Summary The English common law tradition The English common law tradition was established in HKwas established in HK The law in Hong Kong is developing The law in Hong Kong is developing through the Legislative Council’s own through the Legislative Council’s own statute (Ordinance) workstatute (Ordinance) work The Basic Law constitution is The Basic Law constitution is developing a legal system, guaranteed developing a legal system, guaranteed for 50 years from 1997 as part of ‘One for 50 years from 1997 as part of ‘One Country, Two Systems’.Country, Two Systems’.

© University of South Australia 2007 M-1 INTRODUCTION TO LAW SESSION 1 RICK SARRE & KAREN EARLE.

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Transcript of © University of South Australia 2007 M-1 INTRODUCTION TO LAW SESSION 1 RICK SARRE & KAREN EARLE.