Hong Kong Legal System: Legislation, Statutory Interpretation, and Court Structure

Posted on Oct 21, 2025 in Law & Jurisprudence

The Legal Framework

Law is created by the legislature, enforced by the executive, and interpreted by the judiciary. An ordinance originates as a ‘bill’.

Types of Bills
  • Public Bill: Proposed legislation that affects the interest of the community at large. (E.g., The Fixed Penalty (Public Cleanliness Offences) Bill).
  • Private Bill: Deals with the interests of the parties named on it.

The Legislative Process

Bill Passing Process: Initial Stages
  1. Proposal for New Law or Change of Law: Proposed by a government department, LegCo member, the community, or 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: Introduction to LegCo for enactment.
  5. Publication of Bill: Published in the Government Gazette.
Bill Passing Process: Legislative Stages
  1. First Reading: A formal procedure where only the short title is read, and a date is set for the Second Reading.
  2. Second Reading: Concerns the purpose and general principles of the bill.
    • Controversial bills require setting up a Bills Committee to scrutinize the bill in detail.
    • LegCo members debate the merits of the bill and vote on it.
  3. Committee Stage: The Committee of the whole Council examines the bill in detail and may propose additional amendments.
  4. Third Reading: Further debate takes place related to the content, no longer focusing on the general principles. The bill must be supported by a majority of LegCo members.
  5. Chief Executive Consent: Sent to the Chief Executive for consent and signature.
  6. Enactment: Publication occurs in the Government Gazette, and the bill becomes an ordinance upon the effective date.
  7. Reporting: Report to the Standing Committee of the National People’s Congress (SCNPC) for record.
Chief Executive’s Veto Power

If the Chief Executive rejects the bill, it is returned to the Legislature for reconsideration. If it is again passed by at least a two-thirds majority of the legislature members, the Chief Executive must either sign it or dissolve the legislature.

SCNPC Oversight of Hong Kong Laws (Basic Law Art. 17)
  • All laws enacted must be reported to the Standing Committee of the National People’s Congress (SCNPC) for record.
  • If the Congress considers that the ordinance is not in conformity with the Basic Law, it may return it to the HKSAR but shall not amend it.
  • Any ordinance returned becomes invalid.

Subsidiary Legislation

Subsidiary legislation is law made by a person or body empowered by the Legislature (e.g., the Executive Council, Financial Secretary, or the Chief Justice).

  • It takes the form of regulations, by-laws, orders, rules, etc.
  • The power to delegate is contained in a ‘parent’ ordinance.
  • It is subject to the approval of LegCo or any other authority.
  • Example: The New Companies Ordinance and its Subsidiary Legislation.

Interpreting Statutes: Common Law Rules

Judges apply the following common law rules when interpreting statutes:

Literal Rule
  • Interpret the words of the law in their 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.

Note: The Literal Rule cannot be relied upon if words are used in a certain context and the contextual meaning differs from the plain, grammatical meaning.

Golden Rule

When some words and phrases in a statute have two or more literal meanings, the courts apply the Golden Rule to choose a meaning which makes more sense and produces the least absurd result.

Mischief Rule

Ambiguity is resolved by considering the spirit and purpose of the regulation, aiming to determine what “mischief” a particular law was aimed at correcting.

Presumptions in Statutory Interpretation
  • 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.

Hong Kong Court Structure and Jurisdiction

Key aspects of the court structure include:

  • Jurisdiction: Civil jurisdiction, criminal jurisdiction, and appellate jurisdiction.
  • System of Appeal: The transfer of cases from one level to another.
  • Case Separation: Cases are separated into civil law matters and criminal law matters.
  • Personnel.
Civil and Criminal Jurisdiction

Civil Law Matters: Depending on the nature of the claim and the 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.
Categories of Criminal Offences

Criminal offences are divided into three categories:

  • Summary Offence: Less serious criminal cases (e.g., hawking, littering, disorderly conduct).
  • Summary or Indictable Offence (Hybrid Offences): The prosecutor decides whether to treat the offence as a less serious summary offence or a more serious indictable offence (e.g., theft, assaults).
  • Indictable Offences: More serious cases (e.g., murder, armed robbery, rape).
System of Appeal

Appeals generally occur in two situations:

  • Appeal related to arguments about law.
  • Cases originally tried where the court acted without jurisdiction.
  • Court of First Instance hears first appeals from:
    • Magistrates Court;
    • Small Claims Tribunal;
    • Labor Tribunal.
  • Court of Appeal hears first appeals from:
    • Court of First Instance;
    • District Court;
    • Land Tribunal.
Court of Final Appeal (CFA)
  • The highest appellate court in Hong Kong.
  • Has constitutional jurisdiction (interpretation of the Basic Law), though the Standing Committee has the power to override the interpretation.
  • Case Example: Chan Kam Nga v Director of Immigration (1999).
  • Composition:
    • Chief Justice.
    • The Permanent Judges (at least three).
    • Non-permanent HK judges; or
    • Judges from other common law jurisdictions.

Administrative Tribunals

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 [text cut off].