262
The Legal System
Law in Hong Kong
CONSTITUTION AND ADMINISTRATION
The first Letters Patent, which provided thereafter the legal basis for the government of Hong Kong, were dated April 5, 1843. Subsequent amendments and the complementary Royal Instructions have been drafted by officials in London and approved by the minister in the British Government responsible in parliament for Hong Kong affairs. This is now the Secretary of State for Foreign and Commonwealth Affairs. The present Letters Patent and Royal Instructions date from 1917. Although most clauses retain the wording of the 1888 edition, some have been amended several times since.
Generally speaking, the law of Hong Kong follows that of the United Kingdom. The Application of English Law Ordinance was passed in 1966 to declare the extent to which English law is in force in the territory. Section 3 provides that the common law of England and the rules of equity shall be in force in Hong Kong so far as they are applicable to the circumstances of Hong Kong or its inhabitants subject to such modifica- tions as such circumstances may require. Additionally, some United Kingdom Acts apply to Hong Kong, such as the Justices of the Peace Act of 1361 and the Habeas Corpus Act of 1679.
On occasions, laws are made to apply to Hong Kong by order of Her Majesty in Council: the power to make all such law as may appear necessary for the peace, order and good government of the colony being expressly preserved by Article IX of the Letters Patent. In practice this is largely confined to matters which have a bearing on Hong Kong's international position. For example, the Air Navigation (Overseas Territories) Order 1977 is an Order in Council applying provisions of civil aviation treaties, to which Britain is a party, to Britain's overseas territories including Hong Kong.
Local legislation, that is ordinances passed by the Legislative Council and assented to by the Governor, usually start with one of the policy branches of the Hong Kong Government formulating drafting instructions for the Drafting Division of the Attorney General's Chambers. The instructions are prepared after consultation within the relevant government departments, and if appropriate with interested public groups, as to the policy to adopt. After a Bill has been drafted it is submitted to the Governor-in-Council for approval to submit it to the Legislative Council. If passed by vote of the Legislative Council, the Governor is empowered to enact by giving his assent to the Bill and it is passed into law. In much the same way that the common law of England has evolved, so has that of Hong Kong, based on the English common law and rules of equity, following and applying local ordinances and British acts where applicable. Hong Kong ordinances are often closely modelled on United Kingdom statutes or the legislation of Commonwealth countries if considered more appropriate. Cases from Commonwealth countries and the United States of America are quoted in the courts and considered with respect. The Hong Kong courts apply the same doctrine of binding precedent as the English courts. There is a right of appeal to the Privy Council from decisions of the Court of Appeal and decisions of the Privy Council are binding. It was stated in a Full Court case in 1965 that: 'Once a principle of the common law has been clearly propounded by the House of Lords there can be no doubt that decision establishes the law of Hong Kong and, of course, subject to that an opinion of the Privy Council is binding upon us. ... Beyond that we are not bound by authority and we have a duty to reach our own conclusions with the assistance of such persuasive authorities as are available. It has been said that a Colonial judge who is called upon to construe a statute which is in terms not materially different from those of an
Page 345Page 346