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Law is created by the legislature, enforced by the executive and interpreted by the judiciary. An ordinance originates as a ‘bill’ Types of bills: o Public bill – proposed legislation that affects the interest of the community at large. (E.g. The Fixed Penalty (Public Cleanliness Offences) Bill) o Private bill – deals with the interests of the parties named on it.
Bill passing process: 1. Proposal for new law or change of law – proposed by government department, LegCo member or the community, or by the Law Reform Commission 2. Law Drafting: convert the proposal into a draft bill 3. Public Consultation: solicit comments from interested parties or opinions from the public 4. Approval by the Executive Council and introduce to LegCo for enactment 5. Publication of Bill in the Government Gazette
First Reading – A formal procedure, only short title is read and a date is set for second reading 7. Second Reading – Concerns with purpose and general principles of the bill – Controversial bill requires setting up Bills Committee to scrutinize the bill in detail – LegCo members debate the merits of the bill and vote on it – 8. Committee Stage – Committee of the whole Council will examines in detail – May propose additional amendments
Third Reading – Further debate take place related to the content – Not focus on the general principles any more – Must be supported by a majority of LegCo members 10. Send to the Chief Executive for consent and signature 11. Publication occurs in the Government Gazette and the bill becomes an ordinance upon effective date 12. Report to the Standing Committee of National People’s Congress for record
Chief executive and the bill – If the Chief Executive rejects the Bill, return it to the Legislature for re-consideration – If it is again passed by at least a two-thirds majority of the legislature members, he must either sign it or dissolve the legislature
SCNPC and HK laws Under art. 17 of the Basic Law: – All laws enacted must be reported to the Standing Committee of the National People’s Congress (for record – If the Congress considers that the ordinance is not in conformity with the Basic Law, may return it to HKSAR but shall not amend it – Any ordinance returned becomes invalid
Subsidiary legislation – Law made by some person or body empowered by the Legislature, e.g. Executive Council, Financial Secretary, or the Chief Justice – In the forms of regulations, by-laws, orders, rules, etc – The power to delegate is contained in a ‘parent’ ordinance – Subject to the approval of LegCo or of any other authority – Eg: The New Companies Ordinance -Subsidiary Legislation
Judges apply following common law rules in interpreting statutes: – Literal Rule (- Interpret the words of the law in ordinary manner (general usage) – Consider what the legislation says rather than what it might mean – Give primacy to the literal meaning of the language used in the legislation.
Literal rule, however, cannot be relied on if words are used in a certain context and the contextual meaning of the words is different from the plain, grammatical meaning
Golden Rule – When some words and phrases in a statue have two or more literal meanings, the courts will apply the golden rule to choose a meaning which makes more sense and produces the least absurd result.
Mischief Rule – Ambiguity resolved by considering the spirit and purpose of the regulation – To determine what mischief a particular law was aimed at
Presumptions – A statute does not operate retrospectively – A statute does not change fundamental common law principles unless there is a clear legislative intention to do so – A statute does not violate the principles of international law – A statute does not have extraterritorial) effect
Key Aspects of Court Structure – Jurisdiction) – Civil jurisdiction; criminal jurisdiction; appellate jurisdiction – System of Appeal The transfer of case from one level to another level – Cases are separated into: civil law matters and criminal law matters – – Personnel
Civil law matters – Depending on the nature of the claim and amount of money involved – Lesser amount: the District Court – Higher amount: Court of First Instance Criminal law matters – Depending on the degree of severity of the offences – Lesser criminal offences: the Magistrates Court – More serious criminal offences: District Court – Most serious offences go for trial before a judge and jury in the Court of First Instance
Criminal offences are divided into three categories: – Summary offence – less serious criminal cases: e.g. hawking, littering, disorderly conduct, etc. – Summary or indictable offence – hybrid offences. Prosecutor decides to treat the offence as less serious summary offence or a more serious indictable offence: e.g. theft, assaults, etc. – Indictable offences – more serious cases: e.g. murder, armed robbery, rape, etc.
Appeal Courts Two situations to appeal: – Appeal related to arguments about law – Cases were originally tried acted without jurisdiction –
Court of First Instance hears first appeal from: – Magistrates Court; – Small Claims Tribunal; – Labor Tribunal Court of Appeal hears first appeal from: – Court of First Instance – District Court – Land Tribunal
Court of Final Appeal – The highest appellate court in Hong Kong – Also has constitutional jurisdiction- interpretation of the Basic Law. But the standing Committee has the power to override the interpretation – Chan Kam Nga v Director of Immigration (1999) – Composition: – Chief Justice – The Permanent judges (At least three) – Non-permanent HK judges; or – Judge from other common law jurisdictions
Essence of administrative tribunals – Courts without strict rules of evidence and formal procedures – Created to avoid the expense and delay of going to courts Most notable administrative tribunals Small Claims Tribunal – hears claims for damages where the amount is