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Summary 7. The Judiciary (LAWS1100)
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Topics include - The structure of the judiciary - Judicial review - separation of powers - Judicial independence and challenges to judicial independence
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7. THE JUDICIARY1. STRUCTURE OF THE JUDICIARY
Magistrates’ v Maximum 2 years imprisonment (up to 3 years in special circumstances) and a maximum fine of
Courts HK$100,000
v The lower courts -situated across Hong Kong. All criminal cases start here and most end here
v Cases heard by a single magistrate
v Two types:
Ø Permanent magistrate: Full-time, professionally qualified, take more serious cases
Ø Special magistrate: Need not have practiced law but must have five years of court experience.
Tend to handle lesser offences (e.g. traffic cases)
v Magistrates are technically not considered “judges” – important under Basic Law
District v Maximum 7 years imprisonment – both criminal and civil cases
Court v S32(1) District Court Ordinance: The Court has jurisdiction to hear and determine any action
founded on contract or tort where the amount of the plaintiff’s claim does not exceed HKD
3,000,000.
v S82(2)(a) District Court Ordinance: Maximum sentence of seven years’ imprisonment.
v District judges sit alone
v S11A District Court Ordinance:
Ø (1) A judge shall vacate his office when he attains the retiring age
Ø (2) Notwithstanding the fact that he has attained the retiring age, a person holding the office
of a judge may continue in office for so long after attaining the retiring age as may be necessary
to enable him to deliver judgment or to do any other thing in relation to proceedings that were
commenced before him before he attained that age.
v Current retirement age for District Court under Judicial Officers (Extension of Retirement Age)
(Amendment) Ordinance: 54 years
Ø This Ordinance extended the retirement age for CFA and High Court judges to 70 years “to
enable the retention of experienced senior judges and attract experienced and quality private
practitioners to join the Bench
Court of v Civil and most serious criminal cases
First v CFI has unlimited jurisdiction in both criminal and civil cases.
Instance v Hears appeals from Magistrates’ Courts and certain tribunals.
Court of v Hears appeals from District Court and Court of First Instance
Appeal v Three Justices of Appeal or more sit on each case
v Its judgments are treated as binding precedents.
Court of v “A point of law of great and general importance” or in criminal cases, where it is “shown that
Final Appeal substantial and grave injustice has been done”
v Article 82: “The power of final adjudication of the Hong Kong Special Administrative Region shall
be vested in the Court of Final Appeal of the Region, which may as required invite judges from
other common law jurisdictions to sit on the Court of Final Appeal”
v CFA: five-members – Chief Justices, three permanent judges and one non-permanent judge
v Chief justice must be a Chinese national (Article 90 of Basic Law)
v Permanent judges can be Chinese or foreign; must have worked in Hong Kong as a judge in the CFI
or CA as a barrister for 10 years.
v Non-permanent judge can be an overseas judge, discretion of the Chief Justice.
v Maximum of one foreign judge on any case
Ø Currently 14 non-permanent justice from other jurisdictions (Australia, Canada and UK)
Ø Very eminent jurists – e.g., two former CJ of Australia, former UK Supreme Court Justice.
Ø Finally, (!) two female non-permanent judges appointed in 2018 – Lady Hale, President of the
UK Supreme Court and Former Chief Justice of Canada, Beverly McLachlin.
v Non-permanent judge is a part-time judge of the CFA: non-permanent Hong Kong judges, judges
from other common law jurisdiction
v High Court Judge Kevin Zervos SC: “Hong Kong has a unique legal setting. One of its strengths is the
increasing use of comparative law in the development of its jurisprudence, that is, the comparison
of legal principles and their development in different jurisdictions or legal systems. This is best
exemplified by the composition of the court of Final Appeal which may as required invite judges
for other common law jurisdiction to sit on the Court… This important cross fertilisation has greatly
furthered the development of our jurisprudence and strengthened the rule of law. It has also set
Hong Kong apart from other common law jurisdictions as an international legal system.”
Chloe T 27
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