Topic 1: Hong Kong Legal System

References:
1. Anne Carver, Hong Kong business law, Longman, 2001, Chapter 1
2. Chief Executive’s Maiden Policy Address, 8 October 1997 (downloaded from
www.thestandard.com.hk)
3. Introduction to the Basic Law of the HKSAR, Law Press China, 2000

1.0 The Rule of Law

1. See enclosed pdf extracted from The World Justice Project on Rule of Law
Index 2017, a multidisciplinary, multinational movement to advance the rule of
law for communities of opportunity and equity.

2. See ppt.

3. Self-study: Read Paris Hilton case.

2.0 Two approaches to justice: common law or civil law

4. Two widespread families of law originated in England and Western Europe.

5. The English legal system emerged after the Norman Conquest of 1066. The
former patchwork of Anglo-Saxon law was gradually replaced by royal judges
who dispensed justice throughout the countryside, applying the same general
principles everywhere. The result was a shared body of law – the common law
of the realm. England’s language and legal system spread to its colonial empire,
including most of Canada and what was to become the United States.

6. The other leading legal system is modeled upon the law of ancient Rome, which
was revived by Italian scholars in the 11th century and then spread to the rest of
continental Europe. In English it is called the civil law, from Latin jus civile,
meaning ‘the law of the state’. The heart of most civil law systems is a civil
code – a unified, organized, comprehensive code of law that encompasses
contract, tort, property, family, and inheritance law. The most influential modern
civil code was prepared in France at the direction of Napoleon Bonaparte at the
beginning of the 19th century. Its elegance and simplicity found favor in some
countries, including Louisiana (originally colonized by the French and is now

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 the only state in the USA with a legal system in civil law). Subsequent codes,
notably in Germany, were also influential. Ultimately, the European model was
followed by most other countries in the world apart from those once controlled
by Britain or the USA.

7. The central figure in the common law tradition is the judge. Most of the common
law was not enacted but evolved through case-by-case decisions over the
centuries. Until modern times, statutes were viewed as supplemental.
Adherence to judicial precedent is crucial. Otherwise, there would be no
consistency to the law. Therefore, judgeship is a prestigious and often highly
political position and judges are either elected or politically appointed. Since
every non-routine decision “makes law,” judges write elaborate opinions
showing how their decisions follow from earlier cases.

8. In the civil law tradition, codes derived from those of Napoleon are worded
briefly and simply. Napoleon was codifying ideals of the French Revolution.
The job of the civil law judge is to apply the code to the facts. Judgeship is an
important but basically administrative position, i.e. decisions by other judges in
cases with different facts are irrelevant. Judicial opinions are perfunctory and
cite little precedent.

9. Despite their theoretical differences, in practice the requirements of modern life

have driven the two systems closer together. Common law countries make
extensive use of statutes. In the USA, major areas of the law have been
organized into comprehensive codes. In civil law countries, the generally
worded codes have been supplemented by narrower statutes and judges have
developed a body of precedents interpreting the codes.

10. There are differences in substantive law between civil and common law systems,
but the truly significant differences lie in the realm of trial procedure.

11. Under the civil law, non-criminal cases are usually dealt with in a series of
meetings over a period of time (with the judges exercising a high degree of
control), during which relevant information is collected, analyzed, and followed
up on. Witnesses simply tell their stories in their own words and without
interruption. Judges prompt them with questions as needed, and at the end the
lawyers may pose additional questions in case anything was left out. Usually,
there is no lay jury to be confused by extraneous information. There are no

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 objections, and the judges consider whatever the witness has to say. The object
is not to decide which side’s story is more plausible, but to find out the actual
truth – even if it is not quite what either party contends. In some systems the
public prosecutor may even appear in a private case to make sure that facts
affecting the public interest are not concealed or overlooked.

12. Unlike the common law system, the judge is less a neutral referee and more an
active participant in a trial under the civil law system. The prosecutor’s job is
not simply to fight for one side, taking advantage of any oversight by the
opposing lawyers, but rather to help the court in finding the truth, wherever it
may lie.

13. Self-study question: “It is not the judge’s function to make law but to interpret
the meaning of a statute.” Explain and discuss the statement.

3.0 One Country, Two Systems

14. On 1 July 1997 the People's Republic of China (“the PRC”) resumed the
exercise of sovereignty over Hong Kong, which became a Special
Administrative Region of the PRC.

15. The principle of "one country, two systems" which is enshrined in the Basic
Law means that Hong Kong's previous legal system has continued in place as
the foundation of the rule of law in the Hong Kong Special Administrative
Region (the “HKSAR”), whilst the change of sovereignty is reflected in the
HKSAR's new status as a part of the PRC.

16. On 8 October 1997, the Chief Executive of the HKSAR gave his address:-

“One Country, Two Systems and Hong Kong

Hong Kong's reunification with China under the "One Country, Two Systems"
concept requires us to appreciate and accept one practical and profound truth:
Hong Kong's prosperity and stability are closely linked with those of the
Mainland... Simply put, emphasising the "One Country" concept and
implementing "Two Systems" protects the interests of China and Hong Kong…
The Basic Law
The Basic Law is the constitutional law of the Hong Kong Special
Administrative Region. It gives solemn and inviolable legal protection for the

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 "One Country, Two Systems" concept. The Basic Law lays down clearly the
rights that the Central People's Government grants to Hong Kong for the
exercise of a high degree of autonomy; stipulates that Hong Kong shall adopt
social, economic and political systems different from those in the Mainland;
safeguards the lifestyle and rights to which the residents of Hong Kong are
accustomed; and defines the duties of the residents of Hong Kong. We are the
freest and most vibrant economy of our time because Hong Kong has always
practised free enterprise and free trade, insisted on prudent financial
management policies and keeping a low taxation system, upheld the rule of law,
and placed emphasis on an efficient, executive-led government and a quality
oriented civil service. All these factors are safeguarded in the Basic Law...”

17. The “One country, two systems” was first suggested and put forward to Taiwan
on reunification of China by the PRC Government. On New Year day of 1979,
the Standing Committee of the National People’s Congress issued its message
to Taiwan on reunification. It particularly emphasized that “when solving the
question of reunification to respect the status quo and the opinions of the people
from all walks of life in Taiwan, and to adopt fair and reasonable policies and
measures, so that the people in Taiwan will suffer no loss”, and these are already
conceived the concept of “one country, two systems”.

4.0 The Basic Law

18. The Basic Law was enacted by the National People’s Congress in accordance
with the Constitution of the PRC. It was promulgated on 4 April 1990 and took
effect on 1 July 1997 on the establishment of the HKSAR.

19. The most prominent feature of the Basic Law is the underlying principle of “one
country, two systems” whereby (under Article 5) “the socialist system and
policies shall not be practised in the HKSAR, and the previous capitalist system
and way of life is to remain unchanged for 50 years”.

20. Under Article 2, “the National People's Congress authorises the HKSAR to
exercise a high degree of autonomy and enjoys executive, legislative and
independent judicial power, including that of final adjudication, in accordance
with provisions of this Law”.

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21. The Basic Law is akin to a mini-constitution for the HKSAR. Under Article 11,
“no law enacted by the legislature of the HKSAR shall contravene this Law”.
All the systems and policies practised in the HKSAR must be based on the
provisions of the Basic Law. These include 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.

22. The Basic law ensures that the legal system in the HKSAR will continue to give
effect to the Rule of Law, by providing that under 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 HKSAR”.

23. The Basic Law details the fundamental rights, freedoms and duties of the
residents of the HKSAR. Some of these rights include:-

a. the right to equality before the law (Article 25);

b. freedom of speech, of the press and of publication; freedom of association,
of assembly, of procession and of demonstration; and the right and freedom
to form and join trade unions, and to strike (Article 27);
c. freedom of movement (Article 31) [right to travel aboard and return]; and
d. freedom of conscience (thought) and freedom of religious belief (Article 32).

24. Under Article 39, the Basic Law guarantees that the provisions of the
International Covenant on Civil and Political Rights (“the ICCPR”); of the
International Covenant on Economic, Social and Cultural Rights; and of the
International Labour Conventions as applied to Hong Kong will remain in force.

25. Self-study: As an example, criminal offence of desecration of national flag

created under s7 of the National Flag Ordinance was challenged for violating
the freedom of expression guaranteed under the Basic Law and the ICCPR, [e.g.
HKSAR v Ng Kung Siu & Anor FACC4/1999].

26. Under Article 158, “the power of interpretation of this Law shall be vested in
the Standing Committee of the National People’s Congress”.

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27. Under 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 HKSAR” and “no amendment to this Law
shall contravene the established basic policies of the People’s of China
regarding Hong Kong”.

5.0 Main Sources of law

28. Common Law: Common law is essentially judge-made law and its most
distinguishing hallmark is reliance on a system of case precedent, i.e. case law
from all jurisdictions throughout the common law world. Article 84 provides
that the courts of the HKSAR “may refer to precedents of other common law
jurisdictions”.

29. Statute law: Vast majority of statute law in force in Hong Kong is made locally
and contained in the Laws of Hong Kong. A great deal of legislation is made
under delegated powers - the subsidiary legislation. For example, Mass Transit
Railway By-laws 42(2) of Cap 566B enables every official “the power to
remove (if necessary by the use of reasonable force) from the railway premises
any person whom he reasonably suspects of having committed, or attempting to
commit any breach of these by-laws; … and in the case where such breach is an
offence as herein provided he shall have power to detain such person until he
can be delivered into the custody of a police officer to be dealt with according
to law”.

30. Chinese customary law: Some aspects of Chinese customary law apply in
Hong Kong. For example, under s13 of the New Territories Ordinance the
courts may recognise and enforce Chinese customs or customary rights in
relation to land in the New Territories. S14(1) of the Legitimacy Ordinance
declares “any person who is the child of … (d) a kim tiu marriage (兼祧婚姻)
entered into according with Chinese law and custom applicable to Hong Kong
before the appointed date [7 October 1971] under the Marriage Reform
Ordinance (Cap 178), shall be a legitimate child of the marriage or union …”

31. International law: Over 200 international treaties/agreements have been

applied to Hong Kong. A treaty does not constitute part of Hong Kong's

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 domestic law until given effect by legislation. It affects the development of the
common law, e.g. be resorted to by a court as an aid to interpretation.

6.0 Criminal Law

32. The Secretary for Justice (“the Secretary”) has overall responsibility for the
conduct of prosecutions in Hong Kong. It is for the Secretary and those who
prosecute on the Secretary's behalf to decide whether or not a prosecution
should be instituted in any particular case or class of cases.

33. In practice, many prosecutions at the summary level involve simple cases which
are processed by the Police or other investigative bodies and do no require the
specific involvement of the Secretary. All such cases are scrutinised at the
Magistrates Courts by Senior Court Prosecutors acting on behalf of the
Secretary.

34. The most serious criminal offences, such as murder, manslaughter, rape, armed
robbery and certain drug offences, are tried by a judge of the Court of First
Instance, sitting with a jury of seven people or, where a judge so orders, nine. It
is the jury which decides whether the accused is guilty or not guilty. A judge
will urge a jury to strive for unanimity in reaching their verdict, but a jury may
return a majority verdict of five to two or seven to two. N.B. The Basic Law
expressly provides that the principle of trial by jury is to be maintained (Article
86). N.B. Certain death inquest cases must be held with a jury.

35. A number of principles of defence, which are in accordance with Article 14 of

the ICCPR (applied by the Hong Kong Bill of Rights Ordinance) have been
preserved by the Basic Law and incorporated in the Criminal Procedure
Ordinance, Legal Aid in Criminal Cases Rules, or absorbed into the common
law. Some of the principles of defence are as follow:-

 the presumption of innocence;

 the burden of proof lies on the prosecution;
 the standard of proof is one of beyond reasonable doubt;
 the right to be tried without undue delay [48 hours rule];
 the right to legal representation;
 the right to legal assistance [legal aid];
 the right to be tried in one's presence [human rights];

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  the right to have the free service of an interpreter;
 the right to remain silent in court [defendant can choose not to be called];
 the right not to be tried or punished for an offence for which one has
previously been convicted or acquitted [res judicata]; and
 the right to bail pending trial or appeal (subject, however, to the gravity of
the offence charged and all the surrounding circumstances).

36. When the defendant is found guilty or pleaded guilty to an offence, judges and
magistrates will have to decide the appropriate sentence. They may refer to tariff
and/or sentencing guidelines, if applicable, as the starting point. N.B. Not every
type of offence has tariff. Two examples are given below.

a. Tariff on drug trafficking: Guideline for sentencing was laid down in R

v Lau Tak-ming [1990] 2 HKLR 370. Penalties are for increasing
quantities:-
Up to 10 gm of narcotics: 2 to 5 years imprisonment
Between 10 gm and 50 gm: 5 to 8 years
Between 50 gm and 200 gm: 8 to 12 years
Between 200 gm and 400 gm: 12 to 16 years
Between 400 gm and 600 gm: 16 to 20 years
Over 600 gm: 20 years and more

b. Tariff on robbery: According to the tariff specified in Mo Kwong-sang

v R [1981] HKLR 610:-
Simple street “mugging” with no weapons or force: 5 years
Street “mugging” with knife or other weapon carried: 6 years
Robbery with the invasion of private premises: 7 years
Robbery as above and actual violence: add appropriate increment
Armed robbery – large amount of money/guns: more severe sentence

7.0 Civil Law

37. The main difference between criminal and civil proceedings is that the former
are instituted in the name of the HKSAR to suppress crime and to punish
criminals, while the latter are more commonly instituted by individuals
including corporations against other individuals and/or corporations to protect,
to recover property and/or to enforce obligations.

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38. The burden of proof is easier to discharge in a civil case than in a criminal case,
the standard of proof being one based on the balance of probabilities.

39. The principal branches of the civil law include contract, tort, property,
administrative, family and revenue law.

a. The law of contract

b. The law of tort

c. The law of property governs the ownership of, and rights in, property
including land and buildings and intellectual property such as
trademarks, patents and copyright.

d. Administrative law is designed to protect the individual against an abuse

of power by the Government or public bodies.

e. Family law deals with divorce, disputes over custody of children,

maintenance of spouse and children, the division of property, etc.

f. Revenue law is relevant to assessment/recovery of taxes and duties.

8.0 The Language of the Law

40. Article 9 provides that “in addition to the Chinese Language, English may also
be used as an official language by the executive authorities, legislature and
judiciary of the HKSAR”. Both have a part to play in the language of the law.

41. A bilingual legislation programme has begun in 1989 and Hong Kong's statute
book is now entirely bilingual and both versions are accorded equal status.

42. No matter whether English, Chinese or any foreign language is used in the
proceedings, everyone has a right to use the language of his choice to give
evidence. The court will arrange interpretation facilities.

9.0 The Courts

43. Courts are operated by the Hong Kong Judiciary, independently both of the

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 Executive and the Legislature. The Chief Justice is the head of the Judiciary,
both in a judicial and an administrative sense.

44. The courts of justice in Hong Kong are the Court of Final Appeal, the High
Court (the Court of Appeal and the Court of First Instance), the District Court,
the Magistrates Court, the Coroner's Court, and the Juvenile Court.

45. There are a number of tribunals: the Lands Tribunal, the Labour Tribunal, the
Small Claims Tribunal and the Obscene Articles Tribunal.

46. There are also the Appeal Tribunal (Building), the Appeal Tribunal (Town
Planning), etc.

47. Court of Final Appeal hears and determines an appeal by the Court, and
constitutes the Chief Justice, three permanent judges and one non-permanent
Hong Kong judge or one judge from another common law jurisdiction.

48. The Court of Appeal hears appeals on all matters, civil and criminal, from the
Court of First Instance and the District Court, and appeals from the Lands
Tribunal. It makes rulings on questions of law referred to it by lower courts.

49. Jurisdiction of the Court of First Instance is unlimited in both criminal and civil
matters. It has appellate jurisdiction in hearing appeals from Magistracies,
Labour Tribunal, Small Claims Tribunal and Obscene Articles Tribunal.

50. All indictable offences originate before a magistrate. The Secretary for Justice
may apply to have a case transferred to the District Court or committed to the
Court of First Instance depending on the seriousness of the case. Appeals are
brought from a magistrate to a judge of the Court of First Instance.

51. 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. It has power to deal with care and protection cases involving young
people aged up to 18.

52. Children under the age of 10 are deemed not to have reached the age of criminal
responsibility and accordingly no court, including the Juvenile Court, has
jurisdiction over cases involving such young people.

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 Since July 1997 Jurisdiction
Court of Final Appeal Civil & Criminal
Court of Appeal
Civil & Criminal
Court of First Instance
Civil: $ <$1M, Rent < $240K
District Court
Criminal: Imprisonment < 7 yrs
Criminal: Imprisonment < 2 yrs,
Magistrates Court (criminal jurisdiction)
Fine < HK$100K
Small Claim Tribunal Civil: Claims <HK$50,000
Coroners Court
Mostly criminal
Juveniles Court
Labour Tribunal Mostly civil
Lands Tribunal Civil: matters related to land

53. Self-study question: Is murder committed by killing an unborn child?

54. Self-study question: Which court will hear the following cases:
a. A prosecution for (i) dangerous driving AND/OR (ii) murder
b. A claim for damages of HK$50K for breach of contract
c. A claim for a dishonored cheque of $15,000
d. A charge of theft against a girl of age 15

10.0 Legal Aid

55. According to the Legal Aid Ordinance, any applicant, whether or not a Hong
Kong resident, who passes both the means test and the merits test is eligible for
legal aid. Based on legal aid, the Legal Aid Department will provide legal
representation to eligible applicants by a solicitor and, if necessary, a barrister
in civil or criminal proceedings.

56. Self-study question: Why do we need to have or provide legal aid?

57. Legal aid is available for most types of civil cases (with some exceptions, e.g.
defamation and proceedings under Small Claims Tribunal Ordinance). To be
eligible for legal aid, an applicant must satisfy a means test to establish his
financial eligibility limit (financial resource < HK$290,380.00 as of 2017) and
a merits test to show that he has reasonable grounds for bringing or defending

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 the civil proceedings and a reasonable prospect of success, etc. The Director of
Legal Aid has the discretion to waive the upper financial eligibility limit in
meritorious Bill of Rights cases.

58. Financial resources include disposable income and disposable capital. The
former is based on income less allowable deductions such as rent, rates and a
statutory allowance for living expenses. The latter consists of all the assets of a
capital nature, such as cash, bank savings, jewellery, antiques, stocks, shares
and property. However, the applicant's owner-occupied property, household
furniture and effects, personal clothing, tools, etc. are excluded. If an applicant
is over 60, an amount of capital equal to the financial eligibility limit will not
be counted as capital.

59. Legal aid is available for all types of criminal cases including appeals against
decisions of magistrates. To qualify for legal aid for criminal cases an applicant
must satisfy the same financial resources criteria as for civil cases. For criminal
appeals (including appeals to the Court of Final Appeal), legal aid will be
granted only if there are, in law, meritorious grounds of appeal.

60. Supplementary Legal Aid provides legal assistance to the so-called “sandwich
class” who would otherwise not qualify for legal aid because of the means test
(financial resource<HK$1,451,900.00 as of 2017). It covers cases of personal
injury and death, medical, dental and legal professional negligence, and
employees' compensation claims. If the claim is successful, a percentage of the
damages will be paid into Supplementary Legal Aid Fund.

61. The Duty Lawyer Scheme provides legal representation by qualified lawyers in
private practice to defendants who are charged and brought before all
Magistrates Courts, Juvenile Courts and Coroners Courts. To be eligible, a
defendant has to pass the means test and merit test. Each eligible defendant has
to pay a fixed handling charge of $540.00. This is the only charge no matter of
how long the trial lasts. The financial eligibility limit is set at a gross annual
income of $193,750 (as of 2017).

62. Self-study question: Why the means test has to be satisfied?

63. Self-study question: Mary sustains injuries as a result of the negligent driving
of Edward, and she believes that she could recover at least HK$100,000 if she

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 institutes legal proceedings against him. She is unable to appoint a private
lawyer to represent her. She seeks your advice on (a) her eligibility for free legal
aid and (b) the court with which she has to file her claim, and its civil jurisdiction.

64. Self-study question: David owed Diana a sum of $9,000. Despite several
demands made by her, he refused to settle it. It is very unlikely that the debt will
be amicably settled. Fully advise Diana on the jurisdiction of the tribunal which
will determine the disputes.

65. Self-study question: David received a dishonored cheque for HK$10,000. He

is unable to afford a private lawyer. What alternative legal assistance, if any, is
available to him? Where should he file his claim against the person who gave
him the dishonored cheque?

11.0 Arbitration

66. Arbitration is governed by the Arbitration Ordinance. Arbitration Ordinance of

Cap 341 facilitates “the fair and speedy resolution of disputes by arbitration
without unnecessary expense”, see s2AA.

67. Arbitration is a legal process which results in an award (and is not to be

described as a judgment) being issued by the arbitrator or arbitrators. The
arbitrator was almost always an individual with a wealth of experience in the
relevant industry or somebody with a background relevant to the technical
issues in dispute. Arbitration awards are final and binding on the parties and can
only be challenged in very exceptional circumstances.

68. For an arbitration to take place, the disputing parties must agree to take their
dispute to arbitration. In practice, this agreement is often made before the
dispute arises and is included as a clause in their commercial contract. If parties
have agreed to arbitrate, the courts will normally refuse to hear their case to
force the reluctant party to honor their agreement to arbitrate.

69. Arbitration awards made in the HKSAR can be enforced in more than 120
jurisdictions which are signatories to the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards.

70. Over recent years there has been a steady increase in the use of international

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 arbitration. In the international context, arbitration is becoming the method of
choice for resolving disputes for the construction industry. There are essentially
two reasons: neutrality and enforcement.

71. Neutrality: International projects provide unique difficulties. There are “foreign”
regulatory and employment issues to face. Procurement of plant and materials
is different. Taxes and customs may reduce margins. Then, of course, there is
the prospect of serious disputes arising on the project and the worrying thought
that those disputes will be governed by a foreign law and will be determined
through litigation in a foreign court. There is a natural fear of any court, more
so, a foreign court. Most contractors would not wish to take the risk that a
foreign court will decide whether it should be paid for work undertaken in a
foreign country. The presence of an international arbitration tribunal is often
vital.

72. Enforcement: Arbitral awards may be enforced by virtue of the New York
Convention. In contrast to arbitral awards, judgments of the national courts are
not easily enforceable internationally.

12.0 The Legal System in China

73. The legal system in Mainland China is based on the Constitution of the PRC.

74. The highest state organ of the PRC is the National People's Congress (全国人
民代表(大会)) which exercises powers to amend the Constitution, to enact
and amend the more important laws, to appoint and remove the most important
state officials, to approve government budgets, to approve national development
plans and to supervise other state organs such as the Standing Committee (常
務委員會) of the National People's Congress, the State Council (国务院),
the Supreme People's Court ( 最 高 人 民 法 院 ) and the Supreme People's
Procuratorate (最高人民检察院).

75. The Standing Committee of the National People's Congress exercises powers as
listed in the Constitution, such as the power to interpret the constitution and law,
to enact and amend laws and to approve international treaties entered into by
the Government.

76. The State Council (the Central People's Government) is the highest executive

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 organ in the Mainland. Under the State Council, there are various Ministries and
Commissions. At the local level, there are local people's governments at
provincial, county and township levels which are responsible to the State
Council.

77. In the Mainland, the Supreme People's Court, together with lower people's
courts, adjudicate cases, whereas the Supreme People's Procuratorate, together
with lower people's procuratorates, is responsible for approving arrest,
instituting and conducting prosecutions, investigating a number of specific
cases provided by law and exercising the power of legal supervision over the
judgments of the people's courts.

78. Laws in the Mainland are enacted by the National People's Congress and its
Standing Committee, whereas the State Council is authorised to issue
administrative regulations. Local people's congresses may, in accordance with
the constitution, laws and administrative regulations, enact local regulations to
be applied in the local levels. Ministries and Commissions (部委) under the
State Council, as well as local people's governments, may issue governmental
orders in implementing laws and administrative regulations.

Ir Dr Lam Siu Shu Eddie

MSc, PhD, PgD(Law), PCLL, CEng, FIStructE, MIMechE, FHKIE, RPE,
RSE, Class-1 RSE PRC, RI
Barrister Mediator
Dated: 6th January 2018

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READING MATERIAL Paris Hilton case

Paris Whitney Hilton, born February 17, 1981, is an

American celebrity, socialite, actress and recording artist.
She is an heiress to a share of the Hilton Hotel fortune, as
well as to the real estate fortune of her father Richard Hilton.
In September 2006, Hilton was arrested and charged
with driving under the influence (of alcohol). Hilton's drivers
license was subsequently suspended in November 2006. In January 2007, she pled no
contest to the alcohol-related reckless driving charge and was sentenced 36 months'
probation and fines of about $1,500. On January 15, 2007, Hilton was pulled over for
driving with a suspended license and signed a document acknowledging that she was
not permitted to drive. On February 27, 2007 Hilton was caught driving 70 MPH in a
35 MPH zone, again with a suspended license. She also did not have her headlights on
even though it was after dark. On May 4, 2007 Hilton was sentenced by Judge Michael
T. Sauer to 45 days in jail for violating her probation. She was required to begin her jail
term June 5, 2007 or risk a doubling of her sentence.
On June 3, 2007, after attending the 2007 MTV Movie Awards, Hilton checked
herself into the Men's Central Jail of the Twin Towers Correctional Facility in Los
Angeles at 11:38 pm. From there, Hilton was transferred by authorities to a special
section “reserved for police officers, public officials, celebrities and other high-profile
inmates” within the Century Regional Detention Facility, an all female jail in Lynwood.
With credit for good behavior, it was anticipated that Hilton would only serve 23 days
of her 45 day sentence. In an unexpected turn of events, Los Angeles County Sheriff
Lee Baca signed orders on the morning of June 7, reassigning Hilton to 40 days of home
confinement with an electronic monitoring device due to an unspecified medical
condition. Sheriff Baca commented on the release saying, “My message to those who
don't like celebrities is that punishing celebrities more than the average American is not
justice.” The same day Paris was released from jail, Judge Michael Sauer ordered Hilton
to reappear back in his court the following morning (June 8). At the hearing he declined
to be briefed by Hilton's attorney in private chambers on the nature of her condition and
sent her back to jail to serve out her original 45-day sentence. Upon hearing the sentence,
Hilton shouted, “It's not right!” and started screaming for her mother, who was present
in the courtroom. She was then escorted out. Concern about Hilton's condition has led
to her being moved to the medical wing of the Twin Towers Correctional Facility in
Los Angeles instead of the Century Regional Detention Facility in Lynwood.

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READING MATERIAL HKSAR v Ng Kung Siu and Lee Kin Yun, FCCA 4 of 1999
(Criminal), December 15, 1999 Flag desecration v freedom of expression!

As quoted from Chief Justice Andrew Li Kwok-nang:-

“The question in this appeal is whether the statutory provisions which criminalise
desecration of the national flag and the regional flag are inconsistent with the guarantee
of the freedom of expression… The provision in issue in this appeal, National Flag
Ordinance sec 7, provides: “A person who desecrates the national flag .... by publicly
and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an
offence and is liable on conviction to a fine at level 5 [i.e. $50,000] and to imprisonment
for 3 years.” A copy of the national flag that is not an exact copy but so closely
resembles the national flag as to lead to the belief that the copy in question is the
national flag is taken to be the national flag for the purposes of the Ordinance…
[Foreign cases] On the strength of the prohibition in the First Amendment to the
Constitution of the USA against the making of laws abridging the freedom of speech,
the US Supreme Court has struck down both state and federal statutes criminalizing
desecration of the American flag and rendering such desecration punishable by a fine
or imprisonment. Neither the decision in the state statute case of Texas v. Johnson 491
US 397 (1988) nor the decision in the federal statute case of United States v. Eichman
496 US 310 (1989) was unanimous. Each was by a bare majority of five to four…
Turning to other overseas nations, it is to be observed that some of them
criminalize flag desecration while some of them do not. And it is further to be observed
that those of them which do have statute laws criminalizing desecration of the national
flag and rendering such desecration punishable by a fine or imprisonment include a
number of signatories to the ICCPR, article 19(2) of which provides that everyone shall
have the right to freedom of expression… Particularly to be contrasted with the two
American decisions referred to earlier are, therefore, two European decisions upholding
the constitutionality of laws which protect the national flag and render breaches
punishable by a fine or imprisonment. These two European decisions are of the courts
of Italy and Germany, both being signatories to the ICCPR… Norway has no law
criminalizing the desecration of its own flag. But it has a law punishing (by a fine or up
to one year’s imprisonment) public insult in Norway to the flag or national coat of arms
of a foreign nation. I might just mention that Japan is like Norway in that Japan, too,
protects foreign flags and emblems within its jurisdiction without similarly protecting
its own flag or emblems…
The national flag is a unique symbol of the Hong Kong Special Administrative
Region as an inalienable part of the People's Republic of China under the principle of

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'one country, two systems'.”

Ruling: New laws making it a criminal offence to desecrate the national or regional flag
do not breach the freedom of expression as protected by the Basic Law. The convictions
of two protestors who defaced flags were upheld.

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