User:だ＊ぜ/sandbox/Hierarchy of courts in Hong Kong
In Hong Kong, Under the Hong Kong Basic Law and Laws of Hong Kong, the hierarchy of court could be queued as Court of Final Appeal, Court of Appeal, Court of First Instance, District Court, Magistrates' Court. Art 81 in Basic Law stated that the Hong Kong Special Administration Region shall establish "other special courts". Therefore, the tribunals were established to handle special issues, e.g. Small Claims Tribunal, Labour Tribunal, Obscene Articles Tribunal, Family Court, Coroner's Court, etc. Tribunals (except Lands Tribunal) are usually lower in the hierarchy and should follow the decisions of the Court of First Instances or higher courts.
On the handover of Hong Kong, and based on the Sino-British Joint Declaration[1] and the Basic Law[2], the precedents (i.e. case law) made before 1997 are still binding unless the judgments were repealed, has conflicts with Basic Law, or reinterpreted by Legislative Council.
Pre-1997
[edit]Privy Council
[edit]Hong Kong Supreme Court
[edit]Supreme Court was the highest court held in Hong Kong. The court could be separated into two parts - the High Court and Court of Appeal.
Post-1997
[edit]Court of Final Appeal
[edit]Court of Final Appeal (CFA) is the highest court in Hong Kong, which means all its judgment shall be legally binding on all other courts. CFA will not follow stare decisis, i.e. CFA could not follow the precedent which made by itself, to provide flexibility to cope with the new development of the law.
High Court
[edit]On the basic law and Hong Kong Reunification Ordinance (Instrument A601)[3], the Hong Kong Supreme Court
Court of Appeal
[edit]Court of Appeal (CA) is only bounded by Court of Final Appeal, and will be binding on lower courts. In generally, CA shall follow stare decisis, except the following circumstances:[4]
- the court is entitled and bound to decide which of two previous conflicting decisions of its own it will follow;
- the court is bound to refuse to follow a decision of its own which cannot stand with a decision of the Court of Final Appeal and Privy Council which made before the date July the 1st, 1997; and
- the court is not bound to follow a decision of its own if the decision was given per incuriam, e.g., where a statute or a rule having a statutory effect which would have affected the decision was not brought to the attention of the earlier court.
Court of First Instance
[edit]Court of First Instance (CFI) could handle all the case if the case is out of the lower courts' jurisdiction in the matter of law, and could judge all the appeal cases from District Court or other lower courts in hierarchy.
District Court
[edit]District Court (DC) could give longer penalty to defendants in criminal cases.
Magistrate's Court
[edit]All criminal cases judgment may be firstly made a trial in Magistrate's Court (MagC or MC).
Judiciary outside of Hong Kong
[edit]Judiciary from other countries or regions will not influence the judgment, orders, or any other decision made by courts of Hong Kong
Privy Council
[edit]On the Joint Declaration and the Basic Law which both ruled that the laws previously in force in Hong Kong shall be maintained, unless the judgments were repealed, or has conflicts with Basic Law.[2]
Courts in Mainland
[edit]
Reference
[edit]- ^ "The Joint Declaration", legal document, vol. Annex I(II), Constitutional and Mainland Affairs Bureau, 19 December 1984,
After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law and subject to any amendment by the Hong Kong Special Administrative Region legislature.
- ^ a b "The Basic Law", law, vol. Article 8,
第八條：香港原有法律，即普通法、衡平法、條例、附屬立法和習慣法，除同本法相抵觸或經香港特別行政區的立法機關作出修改者外，予以保留。
- ^ Hong Kong Reunification Ordinance. Instrument A601.
- ^ Young v Bristol Aeroplane [1944] KB 718