30
CONSTITUTION AND ADMINISTRATION
Lay assessors sit as advisers with newly arrived magistrates recruited from overseas. Assessors are local residents with a knowledge of local customs, traditions and community feelings. They are drawn from a panel of about 320 assessors.
Four Cantonese speaking special magistrates, who are not legally qualified but experi- enced in judicial work, were appointed to deal with cases of a more routine nature, such as hawking and minor traffic cases. Their powers of punishment, however, do not include the power of imprisonment.
Two coroners conduct inquiries into the cause of, or circumstances connected with, deaths which occur suddenly, by accident or violence, or under suspicious circumstances. They may sit with a jury of three people.
The Juvenile Court has jurisdiction to hear charges against children (aged under 14) and young persons (aged between 14 and 16) for any offence other than homicide.
The District Court, established in 1953, has limited jurisdiction in both civil and criminal matters. It has civil jurisdiction to hear monetary claims up to $60,000 or, where the claims are for recovery of land, the annual rent or rateable value does not exceed $45,000. In its criminal jurisdiction, the court may try the more serious cases with the exception of a few very serious offences such as murder, manslaughter and rape. The maximum term of imprisonment it can impose is seven years. It also exercises appellate jurisdiction in appeals against the assessment of stamp duty imposed by the Collector of Stamp Revenue.
The jurisdiction of the High Court is unlimited in both civil and criminal matters. The court also exercises jurisdiction in bankruptcy, company winding-up, adoption, probate and lunacy matters.
The most serious criminal offences, such as murder, manslaughter, rape, armed robbery and drug offences involving large quantities, are tried by a judge of the High Court, sitting with a jury of seven. It is the jury which decides whether the accused is guilty or not guilty. The decision of the jury must be unanimous in cases in which the law provides for a death sentence. In other cases, a jury may return a majority vote of five to two.
The Court of Appeal is the highest court in Hong Kong. It hears appeals on all matters, civil and criminal, from the High Court and the District Court, as well as appeals from the Lands Tribunal. It also makes rulings on questions of law referred to it by the lower courts. Further appeals can be brought from the Court of Appeal to the Judicial Committee of the Privy Council in London. Such appeals are not frequent because of the expense involved and the stringent conditions which govern the grant of special leave to appeal.
Attorney General
The Attorney General is the Governor's legal adviser. The Royal Instructions provide for him to be an ex-officio member of both the Executive Council and the Legislative Council. In addition, he is chairman of the Law Reform Commission of Hong Kong, a member of the Judicial Services Commission, and a member of the ICAC Operations Review and Complaints Committees. He is titular head of the Hong Kong Bar.
All government departments requiring legal advice receive it from the Attorney General. He is the representative of the Crown in all actions brought by or against the Crown. He is further responsible for the drafting of all legislation and for the conduct of all prosecutions. The Attorney General's Chambers are divided into four divisions and a Special Duties Unit each headed by a law officer to whom the Attorney General delegates certain of his powers and responsibilities. The Civil Division is headed by the Crown Solicitor, and is responsible for giving all legal advice in civil matters and conducting all civil litigation
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CONSTITUTION AND ADMINISTRATION
31
involving the Crown. The Prosecutions Division is headed by the Crown Prosecutor who is responsible for deciding whether a prosecution shall be instituted. The Law Drafting Division is headed by the Law Draftsman who is responsible for drafting all legislation and subsidiary legislation. The Solicitor General heads the Policy and Administration Division, a part of bich consists of the Law Reform Commission Secretariat. The Special Duties Unit has recently been set up to consider treaties to which Hong Kong is a party and other international obligations in the light of the Sino-British Joint Declaration.
In the courts, the Attorney General is usually represented by crown counsel who are members of his chambers. On occasions, the services of outside counsel are obtained.
It is the Attorney General who is responsible for all prosecutions in Hong Kong, and it is for him alone to decide whether or not a prosecution should be instituted in any particular case and it is his responsibility to conduct and control the action. In this respect, the Court of Appeal in Hong Kong held in 1979 that the powers and responsibilities of the Attorney General in Hong Kong were mutatis mutandis, the same as those of the Attorney General in England.
The vast majority of minor prosecutions heard before magistrates are routine matters which are dealt with by law enforcement departments along settled guidelines issued under the authority of the Attorney General and without individual reference to the Attorney General's Chambers. Where such cases are complicated matters, or give rise to difficult points of law, then advice is sought from the Prosecutions Division. The advice of the Attorney General's Chambers must be sought in the case of serious offences where the venue of trial will be the District Court or the Supreme Court.
Legal Aid
To ensure that justice is made available to those persons who are unable to bear the cost of protecting their lawful rights and freedom, Hong Kong has developed over the years a comprehensive and sophisticated system of legal aid. This system is administered by the Legal Aid Department and provides legal representation in both civil and criminal courts while the Law Society Legal Advice and Duty Lawyer Schemes provide free legal advice in civil law matters and free legal representation to defendants in certain criminal cases in the Magistrates' Courts.
Funded by the Hong Kong Government, legal aid is available to residents and non-residents in Hong Kong who satisfy the Director of Legal Aid on financial eligibility and justification for legal action. The financial limits in both civil and criminal cases are the same. The maximum eligibility limits for legal aid in 1985 were a monthly disposable in- come of $1,500 and disposable capital of $15,000. A review conducted during the year proposed an increase in the eligibility limits on income. Disposable income and capital are arrived at after 'allowances' have been deducted from actual earnings and capital of applicants. Legal aid is provided either free or on payment of a contribution depending on the amount of the disposable income and capital. If a legally aided person in civil litigation is successful and legal costs are recovered in the proceedings, then any contribution he may have paid will be refunded. In unsuccessful litigation, the liability for costs of an aided person is limited to the amount of the contribution, if any.
In addition to financial eligibility, the applicant must satisfy the Director of Legal Aid in civil cases that he has a reasonable chance of succeeding in the litigation for which he seeks aid. Legal aid is available for a wide range of civil proceedings in the District Courts, High Court, Court of Appeal and appeals to the Judicial Committee of the Privy Council in London. Traffic accident claims, claims in respect of industrial accidents and employees'
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