MESSAGE

         In the coming year, the Department of Justice will play a key role in realising the vision of "One Country, Two Systems" and the principle of "Hong Kong people governing Hong Kong". In particular, my department will provide advice on the implementation of the Basic Law, and will draft legislation to bring laws of the Hong Kong Special Administrative Region in line with the Basic Law.

         During the early stage of the establishment of the Special Administrative Region Government, it is expected that there will be constitutional challenges arising from the interface between the Basic Law and other legislation. Those challenges are a reflection of the fact that, in a society that is subject to the rule of law, people have the right to have issues determined by an independent judiciary. My department will play a significant part in this litigation, which will help to resolve issues of great constitutional importance.

         Other developments in my department, including work in respect of the new electoral legislation and to facilitate the operation of a bilingual legal system, are set out in this publication. I hope this will help to increase the openness and accountability of my department.

         Anyone who has comments on the Policy Programme, or on the work of my Department, is invited to send them to me.

(Ms Elsie Leung Oi-Sie)
Secretary for Justice

INTRODUCTION

         The Hong Kong Special Administrative Region (HKSAR) Government is committed to ensuring that it is open and fully accountable to the people of Hong Kong. Policies, aims and programmes must be clear to all so that the Government can be accountable for their delivery. With greater clarity of purpose and accessibility, the public can better assess our performance and help us improve our quality of service.

         The Policy Programmes, which underpin the Policy Address delivered by the Chief Executive in October 1997, explain the objectives and ongoing work of each Policy Bureau and its supporting departments, as well as Department of Justice, Office of the Judiciary Administrator, Independent Comission Against Corruption and the Administration Wing of the Chief Secretary for Administration's Office, and their proposed new commitments for the coming year. They are set out in three sections:

• Objectives state the overall objectives of the Government according to each programme area, in particular, responsibilities in relation to implementing the Basic Law are spelt out.

• Major Programme Areas list the aims and the important features of each programme area. An overview of the current situation and key performance indicators are given. This section also sets out the Government's new commitments for the coming year.

• Into the 21st Century describes the vision of the Government for a better Hong Kong as we enter the 21st Century and the plans we are making to meet our long-term needs.

Objectives

         The Government's objective is to maintain and improve the present legal system and reinforce the rule of law. We seek to achieve this goal by:

• providing the Government with the best possible legal services and advice;

• developing efficient and cost-effective legal services in the HKSAR which are responsive to the needs of the community and international investors;

• ensuring that from 1 July 1997 the legal system of the HKSAR, including the new Court of Final Appeal, operates impartially and effectively;

• promoting in the HKSAR and the Mainland a better understanding of the Basic Law, the rule of law and each other's laws and legal system; and

• enhancing the wider use of Chinese in civil and criminal proceedings at all levels of courts in the HKSAR.

Implementing the Basic Law

         The Department of Justice is firmly committed to the full and faithful implementation of the Basic Law. The requirements of the relevant articles, as listed at Annex, have been reflected in the Department's objectives. In particular, it is most important:

• to provide the policy bureaux and government departments with sound legal advice and necessary backup so as to ensure that the policies formulated as well as the legislation that exists or is being introduced are consistent with the Basic Law;

• to ensure that all legislation is properly adapted to conform with the Basic Law; and

• to help public servants, in particular those having direct responsibilities for implementing the relevant articles of the Basic Law, to fully understand the Basic Law.

         To ensure that these Basic Law articles are fully implemented, the Department of Justice will:

• strengthen the Basic Law Litigation Task Force to ensure that litigation having a Basic Law dimension is fairly presented and fully argued in court;

• submit for consideration by the Provisional Legislative Council our proposal to establish a Mutual Legal Assistance Unit to handle requests for mutual legal assistance to and from other jurisdictions on criminal and civil matters;

• continue to assist the Civil Service Training and Development Institute to conduct seminars on the Basic Law, as well as to prepare relevant promotional materials;

• continue to develop, together with the Advocacy Institute of Hong Kong, bilingual litigation further by organising training courses for government lawyers on advocacy in Chinese; and

• promote awareness amongst public servants through lectures and seminars on the Basic Law and those national laws applicable under Article 18 and Annex III of the Basic Law.

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Major Programme Areas

         The Department of Justice is responsible for five major programme areas:

1. Prosecutions;

2. Civil Law;

3. Legal Policy;

4. Law Drafting; and

5. International Law.

A. Prosecutions

Aims

         Our aims are:

• to advise and decide whether or not criminal proceedings should be undertaken; and

• to prosecute cases in the courts of the HKSAR.

Overview

         The principal function of the Prosecutions Division is to advise on and prosecute criminal cases in all the courts in the HKSAR. In every appeal to the Hong Kong Court of Final Appeal and Court of Appeal a senior member of the Prosecutions Division appears to represent the prosecution. In many cases in the Court of First Instance and some in the District Court, the prosecution is conducted by Government Counsel. Most of the cases in the Magistrates' Court are conducted by Court Prosecutors. If necessary, cases are briefed out to members of the private Bar and solicitors in private practice. The Division also advises the law enforcement agencies generally on criminal law and practice and the effect of legislation. This advocacy and advisory function is performed by various specialist sections within the Prosecutions Division. These sections deal with: trial preparation, training, vice, complaints against Police, appeals, Bill of Rights, extradition cases, immigration and labour cases, miscellaneous advice, asset confiscation, Independent Commission Against Corruption (ICAC) cases, Customs and Excise cases and commercial crime cases.

Key Indicators

         In 1996-97,

• 4 270 cases were conducted by Government Counsel in the Department;

• 1 008 cases were briefed out;

• we provided 14 098 items of legal advice;

• we prepared 464 trials in the High Court;

• we prepared 742 trials in the District Court;

• 2 347 appeals were conducted;

• 307 619 cases were conducted by Court Prosecutors in the Department.

New Commitment

1. In 1998-99, we will devise a programme to train Government Counsel to conduct court proceedings in Chinese.

B. Civil Law

Aims

         Our aims are:

• to provide legal advice to the Government and various other bodies in civil matters;

• to undertake civil litigation; and

• to draft contracts on construction-related and other commercial matters.

Overview

         The work of the Division involves:

• representing the Government and other public bodies in courts and tribunals in all forms of civil litigation (including arbitration and mediation);

• dealing with requests from overseas courts for legal assistance in both civil and criminal proceedings;

• giving advice on construction and land law matters and drafting construction contracts;

• giving advice on commercial law matters and drafting commercial contracts; and

• providing legal advice on legislation and civil law matters to the Government and acting as legal adviser to various boards and councils.

Key Indicators

         In 1996-97,

• 1 106 civil actions (including arbitrations) were brought by the Government;

• 429 civil actions (including arbitrations) were brought against the Government;

• there were 1 593 court appearances;

• the number of civil litigation cases current on 31 March 1997 was 8 358;

• we provided 10 492 items of legal advice;

• we drafted/vetted 248 commercial contracts; and

• we drafted/vetted 84 construction-related contracts.

New Commitments

1. In 1997-98, we will speed up action to recover costs of legal proceedings awarded to the Government and enforce judgment debts.

2. In 1997-98, we will provide legal advice on Mandatory Provident Fund Schemes and Occupational Retirement Schemes.

3. In 1998-99, we will form a dedicated team to assist in translating contracts and court documents related to civil proceedings into Chinese.

C. Legal Policy

Aims

         Our aims are:

• to advise the Government on matters raising questions of legal policy;

• to assist in formulating policy, particularly in relation to the legal system and the legal profession;

• to provide support to the Secretary for Justice in relation to her duties;

• to advise the Government in respect of human rights, constitutional law, as well as the law and legal developments in the Mainland; and

• to review chosen areas of the law and provide secretariat support for the Law Reform Commission.

Overview

         The work of the Secretary for Justice's Office and the Legal Policy Division includes:

• advising whether proposed legislation or a particular policy is contrary to established principles underlying the legal system;

• providing support for the Secretary for Justice in relation to her duties as a member of the Executive Council, a designated officer attending the Provisional Legislative Council meetings and as legal adviser to the Chief Executive;

• advising on legal issues arising out of prisoners, petitions for remission, references of cases to the Court of Appeal under the Criminal Procedure Ordinance and responses to public enquiries and complaints;

• providing specialised Basic Law advice to ensure that government policies and legislation in force as well as that to be passed by the Provisional Legislative Council conform with the Basic Law;

• providing specialised human rights advice to ensure the consistency of legislation with the Hong Kong Bill of Rights Ordinance and the International Covenant on Civil and Political Rights (ICCPR) as applied to the HKSAR;

• providing advice on the laws of the Mainland;

• updating a China Law Database, providing advice and lectures on the Basic Law;

• developing working relationships with counterparts in the Mainland;

• providing advice on HKSAR's constitutional law;

• providing advice to the Administration on legislative procedures; and

• giving advice and providing research and support to facilitate the work of the Law Reform Commission.

Key Indicators

         In the 1996-97 Legislative Council Session, we promoted five bills.

         In 1996-97,

• we provided legal advice on 163 petitions;

• we handled 23 requests for transfer of prisoners;

• we provided 551 items of written advice on legal policy issues;

• we handled 888 requests for human rights advice;

• we handled eight law reform projects;

• we gave 131 pieces of legal advice on traditional Chinese law and the modern law of the Mainland (including the Basic Law);

• we gave 407 items of legal advice on constitutional matters;

• we conducted 16 Basic Law seminars;

• we conducted 41 briefings on the Hong Kong legal system and the work of the Department for academics, lawyers and government officials from the Mainland;

• ten lectures were given by Law Officers and other senior officers on the Hong Kong legal system, and on the common law system to procurators and other government officials in the Mainland; and

• three officers from the Legal Policy Division attended the quarterly course on mainland laws organised jointly with Fudan University in Shanghai.

New Commitments

         In 1998,

1. We will set up a dedicated team to provide legal input to the HKSAR Government elections in 1998 and 2000.

2. We will produce a series of law dramas, educational videos and other handouts to promote the rule of law and HKSAR's legal system.

3. We will promote international awareness of the rule of law and legal system of the HKSAR by organising and conducting overseas speaking engagements.

4. We will set up model courts and conduct mock trials in the Mainland.

5. We will promote knowledge within the Civil Service through lectures and seminars on the application of the Basic Law and national laws in the HKSAR.

D. Law Drafting

Aim

         Our aim is to draft sound and enforceable legislation.

Overview

         The work of the Division involves:

• drafting of legislation in the English and Chinese languages and steering such draft legislation through the law-making process;

• adapting the laws of Hong Kong so as to conform with the Basic Law and the status of Hong Kong as a Special Administrative Region of the People's Republic of China (PRC); and

• publishing the loose-leaf edition of laws.

Key Indicators

         During the 1996-97 Legislative Council session,

• 128 ordinances were enacted;

• 540 regulations and other statutory instruments were enacted;

• 4 107 pages of legislation (in English) were enacted;

• 3 590 pages of legislation (in Chinese) were enacted;

• Chinese texts of 224 ordinances were declared authentic;

• the Bilingual Laws Advisory Committee (BLAC) examined 6 601 pages of translated legislative texts;

• we prepared 15 draft bills for localising laws;

• we prepared 61 consultation papers on adaptation of laws for discussion in the Sino-British Joint Liaison Group (JLG);

• ten new ordinances were published in the loose-leaf edition; and

• 21 877 pages of updating material were published in the loose-leaf edition.

New Commitments

         In the 1997-98 legislative session,

1. We will proceed with the adaptation of laws to ensure consistency with the Basic Law and the status of Hong Kong as a Special Administrative Region of the PRC; we aim to complete the drafting of adaptation bills in respect of all essential subjects.

2. We will review the second edition of the English-Chinese Glossary of Legal Terms and carry out preparatory work for the third edition.

         In the 1998-99 legislative session,

3. We will set up a special team to review existing legislation to remove terminological inconsistencies and ambiguities.

4. We will prepare the first edition of the Chinese-English Glossary of Legal Terms.

5. We will complete the drafting of adaptation bills in respect of all the 640 ordinances.

E. International Law

Aim

         Our aim is to provide efficient advice on international law issues.

Overview

         The work of the International Law Division involves:

• providing advice on the legal implications of the Sino-British Joint Declaration on the question of Hong Kong;

• providing advice on all aspects of public international law including consular relations, privileges and immunities, the resolution of trade disputes and the Law of the Sea;

• negotiating and advising on international agreements, including those for surrender of fugitive offenders, mutual legal assistance, transfer of sentenced persons, investment promotion and protection and air services; and

• providing advice on the international law aspects of the adaptation of Hong Kong's laws.

Key Indicators

         In 1996-97,

• we initialled 23 international agreements;

• we attended 236 working days of expert meetings, negotiations and discussions;

• we provided 1 766 items of written advice;

• six localisation bills were agreed at the JLG; and

• proposals on the adaptation of 97 ordinances were handed over to the JLG for discussion.

New Commitments

1. In 1997-98, we will negotiate as many bilateral agreements as practicable; our target is to reach agreement on at least eight agreements.

         In 1998,

2. We will obtain the necessary authorisation from the Central People's Government and negotiate five bilateral agreements on reciprocal enforcement of judgments.

3. We will negotiate eight more bilateral agreements on mutual legal assistance in criminal matters, surrender of fugitive offenders and transfer of sentenced persons.

4. We will establish a library of resources of international rights and obligations under multilateral treaties that apply to the HKSAR.




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Into the 21st Century

         We are committed to ensuring that future laws of the HKSAR are consistent with the Basic Law, and that the rule of law is maintained. This includes building up constitutional litigation capacity to meet challenges to our laws based on the Basic Law.

         Our challenge is to ensure that the principle of "One Country, Two Systems" is strictly observed in respect of legal matters. At the same time, we must develop effective mutual legal assistance with the Mainland, and increase mutual understanding of the two legal systems.

         We will work on the legal issues and administrative arrangements related to the legal and procedural arrangements between the HKSAR and the Mainland in civil and commercial matters.

         Our vision for the HKSAR's legal system in the 21st century is of a legal system which has preserved its integrity, but is still evolving to meet the needs of the community. The legal system will have the respect of the local and international communities, and this will be reflected in steadily increasing arrangements for mutual legal assistance with other jurisdictions. Long-term planning for this vision has begun, with the recent establishment of the Basic Law Unit, the Basic Law Litigation Task Force, the related Basic Law Litigation Co-ordinating Committee, and the proposed Mutual Legal Assistance Unit.




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Annex: Relevant Articles of the Basic Law




Chapter I: General Principles

Article 6

         The Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law.

Article 8

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

Article 9

         In addition to the Chinese language, English may also be used as an official language by the executive authorities, legislature and judiciary of the Hong Kong Special Administrative Region.

Article 11

         In accordance with Article 31 of the Constitution of the People's Republic of China, the systems and policies practised in the Hong Kong Special Administrative Region, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this Law.

         No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.




Chapter II: Relationship between the Central Authorities and the Hong Kong Special Administrative Region


Article 17

         The Hong Kong Special Administrative Region shall be vested with legislative power.

         Laws enacted by the legislature of the Hong Kong Special Administrative Region must be reported to the Standing Committee of the National People's Congress for the record. The reporting for record shall not affect the entry into force of such laws.

         If the Standing Committee of the National People's Congress, after consulting the Committee for the Basic Law of the Hong Kong Special Administrative Region under it, considers that any law enacted by the legislature of the Region is not in conformity with the provisions of this Law regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the Region, the Standing Committee may return the law in question but shall not amend it. Any law returned by the Standing Committee of the National People's Congress shall immediately be invalidated. This invalidation shall not have retroactive effect, unless otherwise provided for in the laws of the Region.

Article 18

         The laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.

         National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region.

         The Standing Committee of the National People's Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the Hong Kong Special Administrative Region and the government of the Region. Laws listed in Annex III to this Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.

         In the event that the Standing Committee of the National People's Congress decides to declare a state of war or , by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People's Government may issue an order applying the relevant national laws in the Region.




Chapter III: Fundamental Rights and Duties of the Residents


Article 25

         All Hong Kong residents shall be equal before the law.




Chapter IV: Political Structure


Section 2 : The Executive Authorities


Article 62

         The Government of the Hong Kong Special Administrative Region shall exercise the following powers and functions:

         ......

(5)

To draft and introduce bills, motions and subordinate legislation; and

         ......

Article 63

         The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.




Section 4: The Judiciary


Article 84

         The courts of the Hong Kong Special Administrative Region shall adjudicate cases in accordance with the laws applicable in the Region as prescribed in Article 18 of this Law and may refer to precedents of other common law jurisdictions.

Article 86

         The principle of trial by jury previously practised in Hong Kong shall be maintained.

Article 87

         In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.

         Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs.

Article 94

         On the basis of the system previously operating in Hong Kong, the Government of the Hong Kong Special Administrative Region may make provisions for local lawyers and lawyers from outside Hong Kong to work and practise in the Region.

Article 95

         The Hong Kong Special Administrative Region may, through consultations and in accordance with law, maintain juridical relations with the judicial organs of other parts of the country, and they may render assistance to each other.

Article 96

         With the assistance or authorization of the Central People's Government, the Government of the Hong Kong Special Administrative Region may make appropriate arrangements with foreign states for reciprocal juridical assistance.




Chapter V: Economy


Section 1: Public Finance, Monetary Affairs, Trade, Industry and Commerce


Article 105

         The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.

         Such compensation shall correspond to the real value of the property concerned at the time and shall be freely convertible and paid without undue delay.

         The ownership of enterprises and the investments from outside the Region shall be protected by law.

Article 109

         The Government of the Hong Kong Special Administrative Region shall provide an appropriate economic and legal environment for the maintenance of the status of Hong Kong as an international financial centre.

Article 118

         The Government of the Hong Kong Special Administrative Region shall provide an economic and legal environment for encouraging investments, technological progress and the development of new industries.




Chapter VIII: Interpretation and Amendment of the Basic Law


Article 158

         The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.

         The Standing Committee of the National People's Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.

         The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected.

         The Standing Committee of the National People's Congress shall consult its Committee for the Basic Law of the Hong Kong Special Administrative Region before giving an interpretation of this Law.

Article 159

         The power of amendment of this Law shall be vested in the National People's Congress.

         The power to propose bills for amendments to this Law shall be vested in the Standing Committee of the National People's Congress, the State Council and the Hong Kong Special Administrative Region. Amendment bills from the Hong Kong Special Administrative Region shall be submitted to the National People's Congress by the delegation of the Region to the National People's Congress after obtaining the consent of two-thirds of the deputies of the Region to the National People's Congress, two-thirds of all the members of the Legislative Council of the Region, and the Chief Executive of the Region.

         Before a bill for amendment to this Law is put on the agenda of the National People's Congress, the Committee for the Basic Law of the Hong Kong Special Administrative Region shall study it and submit its views.

         No amendment to this Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong.




Chapter IX: Supplementary Provisions


Article 160

         Upon the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People's Congress declares to be in contravention of this Law. If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law.

         Documents, certificates, contracts, and rights and obligations valid under the laws previously in force in Hong Kong shall continue to be valid and be recognized and protected by the Hong Kong Special Administrative Region, provided that they do not contravene this Law.




Note

         In addition, all Bureaux/Departments, as well as Department of Justice, Office of the Judiciary Administrator, Independent Commission Against Corruption and the Administration Wing of the Chief Secretary for Administration's Office, have joint responsibility for the implementation of the following articles:

Articles 11 (first paragraph), 16, 56 (second paragraph), 62(1) and (2), 64, 142, 148, 149, 150, 151, 152 and 153.




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Policy Programme