cd-burn law

8/7/2019 CD-BURN LAW

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COLLEGE OF BUSSINESS (COB)

ASSIGNMENT

LAW : HONG KONG

PREPARED BY : ILI SYAZANARASHDI

MATRIX NO : 808839

COURSE : MASTER IN BUSINESS ADMINISTRATION (MBA)

SUBJECT : GMUL5063 (Ethics, Law & Corporate SocialR

esponsibility)

GROUP : A

PREPARED FOR : PUAN ROOS NIZA BINTI MOHD. SHARIFF

SUBMITTED DATE : 31 MARCH 2011


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TABLE OF CONTENTS

PARTICULARS PAGE(S)

Hong Kong : Preface 1

1.0 INTRODUCTION TO THE CONCEPT OF LAW

1.1 NATURE AND FUNCTIONS OF LAW

1.1.1 Nature of the Law (general)1.1.1.1 Nature of Basic Law1.1.2 Functions of Law (general)

1.1.2.1 Functions of Basic Law

1.2 LAW IN RELATION TO JUSTICE

1.3 CLASSIFICATIONS OF LAW

1.3.1 National Law and International Law

1.3.2 Public Law and Private Law

1.3.3 Substantive Law and Procedural Law

1.3.4 Common Law and Legislation1.3.5 Common Law and Equity

1.3.6 Common Law and Civil Law

1.3.7 Criminal Law and Civil Law1.4 SOURCES OF LAWS

1.4.1 National Law1.4.2. Basic Law1.4.2.1 The interpretation and amendment of the Basic Law1.4.3 Laws Enacted by the SAR1.4.4 Common Law

1.4.5 Rules of Equity1.4.6 Customary Law

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2.0 JUDICIAL AND LEGISLATIVE PROCESS2.1 COURT SYSTEM

2.1.1 The Court of Final Appeal

2.1.2 The High Court

Criminal Case under Court of Appeal of Hong Kong

a) Facts of the case

b) Summary of the case

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c) Held

d) Ratio Decidendi

(i) Facts of the case

(ii) Held

(iii) Appeal

(iv) Comment/Recommendation2.1.3 The District Court

2.1.4 The Magistrates' Courts

2.2 THE HIERARCHY OF HONG KONG COURT SYSTEM

2.3 ALTERNATIVE DISPUTE RESOLUTION (ADR)

2.3.1 Arbitration

2.3.2 Mediation and Conciliation

2.3.3 Negotiation

2.3.4 Ombudsman and Other

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3.0 CONCLUSION 28

Attachments i

Reference ii


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HONG KONG : PREFACE

Hong Kongis one of two special administrative regions (SARs) of the People's Republic

of China (PRC) while the other being Macau. Situated on China's south coast and enclosed by

the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep

natural harbour. With a land mass of 1,104 km2 (426 sq mi) and a population of seven million

people, Hong Kong is one of the most densely populated areas in the world. Hong Kong's

population is 95 percent ethnic Chinese and 5 percent from other groups. Hong Kong's Han

Chinese majority originate mainly from the cities of Guangzhou and Taishan in the neighbouring

Guangdong province. The name "Hong Kong" is an approximate phonetic rendering of the

pronunciation of the spoken Cantonese or Hakka name, meaning "fragrant harbour" in English.

Before 1842, the name referred to a small inlet now Aberdeen Harbour or Little Hong Kong

between the island of Ap Lei Chau and the south side of Hong Kong Island, which was one of

the first points of contact between British sailors and local fishermen.

The reference to fragrance may refer to the harbour waters sweetened by the fresh water

estuarine influx of the Pearl River, or to the incense from factories lining the coast to the north of

Kowloon, which was stored around Aberdeen Harbour for export before the development of

Victoria Harbour. In 1842, the Treaty of Nanking was signed, and the name Hong Kong was

first recorded on official documents to encompass the entirety of the island.

Hong Kong became a colony of the British Empire after the First Opium War (183942).

Originally confined to Hong Kong Island, the colony's boundaries were extended in stages to the

Kowloon Peninsula and the New Territories by 1898. It was occupied by Japan during the

Pacific War, after which the British resumed control until 1997, when China regained

sovereignty. The region espoused minimum government intervention under the ethos of positive

non-interventionism during the colonial era. The time period greatly influenced the current

culture of Hong Kong, often described as "East meets West" and the educational system which

used to loosely follow the system in Englanduntil reforms implemented in 2009.


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1.0 INTRODUCTION TO THE CONCEPT OF LAW

On 19 December 1984, Governments of British and Chinese signed the Joint Declaration

on the Question of Hong Kong, affirming that the Peoples Republic of Chinas Government will

resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997, thus fulfilling

the long-cherished common aspiration of the Chinese people for the recovery of Hong Kong. 1

Under the principle of "one country, two systems", Hong Kong has a different political system

from mainland China as well as in their legal/law system.

According to Community Legal Information Centre (CLIC), Hong Kong Laws are

generally composed of the Basic Law, Common Law, Rules of Equity and Statute Law. Law can

be interpreted as operates to regulate the interaction between individuals and the society itself in

order to enforce certain codes of behavior. General meaning of Basic law is as an alternative to

"constitution", implying it is a temporary but necessary measure without formal enactment of

constitution. A Basic Law is either a codified constitution or in countries with uncodified

constitutions, a law given to have constitution powers and effect. Common Law is the law

developed by judges through decisions of courts and similar tribunals rather than through

legislative statutes or executive branch action. Rules of equity can be described as the set of legal

principles, in jurisdictions following the English common law tradition that supplement strict

rules of law where their application would operate harshly. Written law (as opposed to oral or

customary law) that has been set down by a legislature is known as the Statute Law.

1http://www.basiclaw.gov.hk/en/basiclawtext/index.html


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1.2 NATURE AND FUNCTIONS OF LAWIn this section, we will focus on the Basic Law as it is the principal source of law in Hong Kong.

1.2.1 Nature of the Law (general)Law develops its conceptions, no matter how abstract they may sound, for eminently practical

reasons. Law operates to regulate the interaction between individuals in the society or between

individuals and the society itself in order to enforce certain codes of behavior. It is also

normative in nature which means obligatory on human conduct. As an example, the criminal law

makes it illegal to steal. If an individual steals and is caught then the State has the right to bring

that person to trial and if found guilty, therefore law will punish him. Another example is

contract law says that if one party offers to sell goods to another party and the second party

accepts that offer there is a legally binding contract between the two parties. If one of them

breaks the contract then the law allows the others to go to the court and the result might be the

first person has to pay compensate to the second person. Law is made to protect and regulate

society and ensuring the societys continued existence. It provides order and a framework which

governs and regulates our daily lives.

1.2.1.1 Nature of Basic LawThe Basic Law is a unique document. It reflects a treaty made between two nations. Article 11

provides that no law enacted by the legislature of the Hong Kong Special Administrative Region

(HKSAR) shall contravene the Basic Law. The Basic Law is a detailed document, with several

(and frequently vaguely worded) normative provisions which limit the competence of the

legislature and the executive of the HKSAR. In addition the Basic Law establishes the

relationship between the state authorities of the People's Republic of China (PRC) and the HKSA

which practices a different system. It stipulates the organizations and functions of the different

branches of government. It sets out the rights and obligations of the citizens.

Hence, it has at least three dimensions : international, domestic and constitutional. It must also be

borne in mind that it was not drafted by common law lawyers. It was drafted in the Chinese

language with an official English version but the Chinese version takes precedence in case of

discrepancies. Some of it basic nature are :


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a) Basic Law is a national law of Chinab) Basic Law is the constitution of Hong Kongc) Basic Law is the source of Hong Kong's common law

1.2.2 Functions of Law (general)To prevent as many disputes as possible and to resolve those it cannot stop. It can prevent

disputes by making it clear what people are allowed or required or forbidden to do. Law also can

be a medium of dispute resolution (law of tort) and as a regulation of governmental powers (such

as constitutional law and administrative law). People can organize their conduct by relying on

the law. The law also says what will happen if they are proved to have broken its rules. The law

does not interfere in all kinds of conflict as it leaves some to the parties themselves to sort out or

live with. When the law is called in to solve a conflict, its primary task is to restore and preserve

order. Yet it must also strive to do what is fair between the parties. We cannot simply make up

new law to suit each new case, must look at the existing law first.

1.1.2.1 Functions of Basic Law

a) Basic Law is to maintain continuity, stability and prosperity of Hong Kongb) Basic Law is to reinforce national unity and territorial integrity.c) Basic Law is to maintain order in the HKSAR.d) Basic Law is to distribute and delimit powers.e) Basic Law is to protect the high degree of autonomy enjoyed by Hong Kong.f) Basic Law is to give to Hong Kong residents the full measure of fundamental rights

and freedoms so constitutionally guaranteed.


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1.2 LAW IN RELATION TO JUSTICE

The connection between law and justice is more closely if compared to the connection

between law and morality. This is because many types of behavior are seen as immoral but not

necessarily unlawful. In fact, many attempts have been made to define the word justice but not

one would be universally accepted. Nevertheless, all societies in this world promote the theory of

justice but one thing that must be taken into consideration is that each and every society has

different concept of justice to another. Taking adultery as an example, in certain Muslim

countries it remains a crime while in Hong Kong, the behavior or act is considered unmorally

and unacceptable but would view a law that made it a criminal offence too severe and, therefore,

unjust.

Let we look at this example. Criticisms of the operations of the law such as police have

acted unfairly are based on an individuals perceptions of justice. It will affect the law and its

administration altogether. Where laws are perceived to be unjust and agreed by the majority then

this may be the impetus or momentum that brings about a change to those laws. In this case, as

long as the law remains, there will be the feelings of injustice. The term justice here can be

described as an expression of community feeling or as part of the law itself. The most striking

example in Hong Kong of where justice has become an integral part of the law and the law-

making system is embodied in the rule of law.


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1.3 CLASSIFICATIONS OF LAW

The term law is too big has too many meanings and too many aspects. Classifying the

law can helps us to teach or study the law and also finding the law. However, not all

classifications of law work in the same way. In the case of Hong Kong, there are 7 mainclassifications of laws such as :

1.3.1 National Law and International Law

The national law of a country is also known as municipal law. It applies within the nation. On the

other hand, international law governs the relations between nations. An example of international

law or more specific, public international law, is the Joint Declaration between China and

Britain, which set out the conditions for the return of Hong Kong to China on July 1, 1997.

Another body of law is called private international law (or sometimes conflict of laws) to

determine which national law applies to a dispute and which countrys court shall hear it. It is not

really international at all but a part of each countrys national law. Each country has its own rules

to deal with the conflicts of laws though there are international conventions that attempt to

introduce uniformity.

1.3.2 Public Law and Private Law

Examples of public law include criminal law, administrative law and constitutional law while

private law include the laws of contract and tort, property law, company law as well as family

law. In the above explanations on national and international law, it shows that the law can be

either public or private. In fact, all law can be put into those categories. The general distinction

between public and private law is that private law deals with the legal relationships and the

conflicts that arise from them, between individuals or group. On the contrary, public law deals

with the relationships and conflicts where one of the parties is the State.


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1.3.3 Substantive Law and Procedural Law

Substantive law is the rules that govern the legal relationships between individuals (e.g : contract

law) or individuals and the State (e.g : criminal law). Procedural law is the rules that govern the

processes by which legal disputes are resolved. It contains the laws of litigation (the bringing ofa case to court and operations of the court itself) and also the evidence.

Rules of evidence are intended to make sure that the court has the right facts before it, proved in

the best and most dependable way. It requires the original documents to be produced, where they

are available and will reject the copies. Moreover they will insist that oral testimony be kept

relevant to the issue between the parties. Usually evidence of an accused persons previous

convictions will be given to the court only after the accused has been found guilty. It considers

previous offences relevant to the punishment to be imposed but not in determining whether the

accused is guilty of the present crime.

1.3.4 Common Law and Legislation

Legislation is passed by the legislature or made by government authorities under powers

delegated to them. In Hong Kong, it includes primary legislation in the form of ordinances and

secondary legislation like rules, regulations and bylaws. Common law is used to describe the law

found in the cases which the decisions of the courts in resolving many disputes that come before

them.

Case law can be divided into cases that deal with the application of legal principles, like those

which form the basis of contract and tort law, and the interpretation of the meaning of the

legislation. Cases will often involve both functions but the effect of the courts decision is to lay

down legal principles for other courts and judges to follow on the future.

1.3.5 Common Law and Equity

The distinction between these two can only be properly explained based on the historical

development of Englands law. It is important because the Basic Law states the HKSARs laws

shall include the common law and rules of equity in force prior to the changeover on 1 st July

1997 that does not contravene the Basic Law.


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Many of Hong Kongs legal principles were first developed by the early courts in England and

still remains today and are still in the form of case law, while other principles are now in

legislation form (can refer to the distinction between common law and legislation as above). A

vast system of case law was established in early English history. It also developed a procedure

for ensuring that the law continued to be applied from future court to future court (knows as

doctrine of precedent). Due to a rigid and uncompromising application of the law by the common

law courts, the courts of equity were established to provide more flexible approach. Today, there

are no separate courts but lawyers still talk about common law and equitable remedies.

1.3.6 Common Law and Civil Law

Countries whose legal systems are most influenced by the Roman law (the law of the former

Roman Empire) are called civil law jurisdictions. The essence of the distinction lies in the role

played by case law. Knowing that many of the legal principles of a common law system are

contained in the decisions of the courts, these principles are then maintained by the doctrine

known as precedent. In civil law systems, the courts function is more one of simply applying the

law which exists in legislative form, such as codes (e.g : Civil and Criminal Laws of the Peoples

Republic of China).

1.3.7 Criminal Law and Civil Law

A distinction is sometimes drawn between criminal law and all other kinds of law, then labeled

civil law. These categories are sometimes used in describing the kind of work a lawyer

specializes in (civil or criminal) as well as the jurisdiction of the courts.


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1.4 SOURCES OF LAWS

1.4.1 National Law

Several national laws of the People's Republic of China apply in Hong Kong by virtue ofArticle18 of the Basic Law. UnderArticle 158 of the Basic Law, an interpretation of a provision of the

Basic Law by the Standing Committee of the National People's Congress is to be followed by the

courts of Hong Kong in applying the relevant provision.2

Article 18 of the Basic Law provides that:

The laws of Hong Kong Special Administrative Region shall be this Law, the laws previously in

force in Hong Kong as stipulated in Article 8 of this Law, and the laws enacted by the legislatureof the Hong Kong Special Administrative Region.

1.4.2 Basic LawThis is the principal source of law in Hong Kong. It took effect on 1 July 1997 on the

establishment of the Hong Kong Special Administrative Region (HKSAR) and was enacted by

the National People's Congress in accordance with the Constitution of the People's Republic of

China (PRC) and it is similar to a mini-constitution for the HKSAR. It provides the constitutionalframework for the Region. All law must be in accordance with its provisions, both in terms of

new law as well as that which has been carried over after the changeover.

The most outstanding feature of the Basic Law is the underlying principle of "one country, two

systems" whereby the socialist system and policies shall not be practiced in the HKSAR and the

previous capitalist system and way of life is to remain unchanged for 50 years. All the systems

and policies practiced in the HKSAR must be based on the provisions of the Basic Law. National

laws of the PRC shall not be applied in the HKSAR except for a number of such laws relating to

defense, foreign affairs and executive acts of the central government of the PRC (listed in Annex

III to the Basic Law).

2http://www.doj.gov.hk/eng/legal/index.htm#3


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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 those

that contravene this Law or have been amended by the legislature of the Hong Kong Special

Administrative Region.

1.4.2.1 The interpretation and amendment of the Basic Law


"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

HKSAR to interpret on their own, in adjudicating cases, the provisions of this Law which are

within the limits of autonomy of the Region.

The courts of the HKSAR 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, orconcerning 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 HKSAR before giving an interpretation of this Law."


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In addition, the power of amendment of the Basic Law is vested in the National People's

Congress. The powers to propose bills for amendments to the Basic Law are respectively vested

in the Standing Committee of the National People's Congress, the State Council and also the

HKSAR. 3

1.4.3 Laws Enacted by the SARThe new SAR legislature has full power and authority to enact new laws which have priority

over all other laws except the Basic Law. The formal autonomy of the legislature of the SAR is

clearly much greater than that of the former Legislative Council (Legco). Without reference to

any authority outside the SAR, it may enact any laws it wishes, subject only to the reservations

in aspect of defense, foreign affairs and the other matters set out in Article 18(3). In particular,

the legislature can change any common law, customary law or equity.

1.4.4 Common LawThe most distinguishing aspect of common law is the reliance on the doctrine of precedent when

making court judgments. It is not restricted to judicial decisions generated within Hong Kong

only but case law from all jurisdictions throughout the common law world. Article 84 of the

Basic Law provides that the Hong Kong courts may refer to case precedents from other

countries under common law jurisdictions. Moreover, the Court of Final Appeal and the Hong

Kong Judiciary are given the power to invite judges from other common law jurisdictions to

participate in the judicial processes.4 In most of these cases, the Hong Kong courts simply

followed and confirmed the approach taken by three English courts, the Privy Court, the House

of Lords and the Court of Appeal.

3http://www.hkclic.org/en/topics/hkLegalSystem/sourcesOfLawInHongKong/answer03.shtml

4http://www.hkclic.org/en/topics/hkLegalSystem/sourcesOfLawInHongKong/answer04.shtml


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1.4.5 Rules of EquityThe major distinction between common law and the rules of equity is that common law remedies

are available as of right while remedies in equity are discretionary. It is important to note that the

laws previously in force include equity together with common law. The court does not have to

grant an equitable remedy where it regards the behavior of the party seeking such an equitable

award does not deserve such an award. The usual equitable remedies include injunction (a court

order requiring someone to stop doing something) and specific performance (a court order

requiring one of the parties to a contract to perform his/her part of the contract).

1.4.6 Customary LawCustomary law has been included in Article 8 (explained before). It is unlikely that the Basic

Law is intended to expand the scope of customary law and it will presumably remain the same as

the Chinese law and custom preserved prior to the changeover. This is of little practical

importance except as it affects land rights in the New Territories, though it is doubtful but still

restored to its previous legal position, where there was supposed to be customary law that

insisted that all relevant land must pass on the death of the owner to his male relatives to the

exclusion of the females.


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2.0 JUDICIAL AND LEGISLATIVE PROCESS

2.1 COURT SYSTEM

The courts of justice in Hong Kong are the Court of Final Appeal, the High Court (which

comprises the Court of Appeal and the Court of First Instance), the District Court (including the

Family Court) and the Magistrates' Courts. Moreover, there are a number of tribunals which

have jurisdiction to adjudicate on disputes relating to specific, defined areas which include the

Lands Tribunal, the Labor Tribunal, the Small Claims Tribunal and the Obscene Articles

Tribunal. The Judiciary is responsible for the administration of justice and hears all prosecutions

and civil disputes. It is completely independent of the executive and legislative branches of the

Government.

2.1.1 The Court of Final AppealIt is the highest appellate court in the HKSAR. It has jurisdiction in respect of matters conferred

on it by the Hong Kong Court of Final Appeal Ordinance, Cap. 484 and by any other law. It

hears appeals on civil and criminal matters from the High Court (the Court of Appeal and the

Court of First Instance). The Hong Kong Court of Final Appeal Ordinance provides that an

appeal shall be heard and determined by the Court constituting the Chief Justice, three permanent

judges and one non-permanent Hong Kong judge or one judge from another common lawjurisdiction.

2.1.2 The High Court (previously known as the Supreme Court)

(i) The Court ofAppeal : It hears appeals on all civil and criminal matters from theCourt of First Instance and the District Court. It also hears appeals from Lands

Tribunal and various Tribunals and Statutory Bodies.

(ii) The Court of First Instance : The jurisdiction of the Court of First Instance isunlimited in both criminal and civil matters. The latter include divorce, admiralty,

bankruptcy, company winding-up, adoption, probate and lunacy. The Court of First

Instance also exercises appellate jurisdiction in hearing appeals from the Magistrates'


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Courts, the Labor Tribunal, the Small Claims Tribunal and the Obscene Articles

Tribunal.

Criminal Case under Court of Appeal of Hong Kong

HKSAR v. Lam Chun Wah (1999) HKCA 314 CACC000646/1997, 8 June 19995

a) Facts of the caseThe defendant in this case is Lam Chun Wah. He was convicted to murder Liu Kam Mei

on October, 23rd 1996. Kam Mei, the victim was a 20 years old karaoke hostess has been beaten

at the head and body into an apparent state of unconsciousness before being burnt alive while

most likely still unconscious. The event took place at the vacated wooden house on the way to

Sam Shing Temple. The applicant (defendant) was arrested on November 28th, 1996. At first, he

denied his involvement in this murder and said he never met the victim. However, after the

revealed of the black notebook that belonged to the defendant with the victim's name and

telephone number appeared on the last page of the book found at the murders place then he went

to admit that he knew the victim. The importance of the forensic scientist's (Cheung Yiu Ming)

evidence in this case was that he found traces of toluene and xylene on item J6 (a shoe that had

been taken from the burnt debris for examination). Toluene and xylene are flammable liquids

which are commonly found as constituents in paint thinner mixtures.

b) Summary of the case20 years old, Liu Kam Mei, the victim of the case had last been seen alive by her

supervisor from work travelled together by taxi to Mongkok. The story begins when the

applicant finished his work on 23rd October 1996 at 7.30 am. He noticed a male and two females

by the Mongkok market where the male made a reference to $1,000 which according to the

applicant, made him think that the females were prostitutes. The applicant interested in one of

5http://www.hklii.org/cgi-hklii/disp.pl/hk/jud/eng/hkca/1999/CACC000646_1997-

06254.html?query=~+murder


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the females which happened to be the victim and handed his money to the man. The girl and he

got on a public light bus and alighted in Ching Wah Lane at a point close to Sam Shing Temple.

He saw the male to whom he had paid the money earlier getting off another bus together with the

other girl. Then, the four of them walked together and on the way to Sam Shing Temple, he saw

a vacated wooden house and stone bench nearby.

He then told the police that he held the victim in his arms and touched her body. Then he

intended to strip the victim and make love with her. However the victim refused and started to

push him off. They began to fight with the result of the victim scratched the inside of applicants

right forearm with her fingernails and caused him bleeding. She also bit the middle finger of his

left hand that caused it to go bruised and squeezed his private parts. Due to this, the applicant

pushed her down that her head hit a rock on the ground. He continued to bang her head on the

rock twice until her unconsciousness. He searched a wallet in the victims handbag and took

back the $1,000. Then, he saw the male and the female dragged the victims body into the

vacated wooden house where the male told the applicant that the girl was dead. So they decided

to burn her with the male and the female picked some rubbish and branches while the applicant

was waiting outside the house. He continued to tell the police that they put all the rubbish and

branches on the victims body and lit the fire to burn her (as the judge reminded the jury at page

13A). After that, he went back to her home and sleep.

Following the interview, police also conducted a further interview which was video

recorded. The applicant again admitted that he hit the victim and added that he also hit her on the

belly. He went on to tell that the other male also hit the victim when he heard the applicants

story. He also told that they used a lighter to burn the victim together with her handbag. These

interviews provided the only accounts of what happened to the victim when she was killed but

the applicant did not give evidence at his trial. The prosecution's case was that the other two

persons (the male and the female) who featured in the applicant's story had been made up by him

in order to have others upon whom to place prime responsibility for the killing. Therefore the

jury had to decide this case upon the evidence of such parts of the applicant's confession that

they felt able to believe and also from the inferences which they felt able to draw from the

accounts he had given to the police, coupled with other evidence as to the circumstances. This


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principally came from the oral evidence of Dr. Poon Wai Ming (the pathologist) and the

statement of the forensic scientist which was read to the jury by agreement with the defense.

The pathologist described how almost the whole of the victim's body had suffered severe

burns. One important exception was the back of the head where the pathologist found four areas

of laceration and a bruise. The lacerations were irregular and consistent with the head hitting a

rock and he also found no identifiable ante-mortem fracture of the skull. On internal

examination, it was revealed that the victim had inhaled hot gases before she died. For this

reason, the actual cause of death was given as having been due to burns. The importance of the

forensic scientist's (Cheung Yiu Ming) evidence in this case was that he found traces of toluene

and xylene on item J6 (a shoe that had been taken from the burnt debris for examination).

Toluene and xylene are flammable liquids which are commonly found as constituents in paintthinner mixtures. He also discovered that the back of the victims dead body has suffered much

less fire damage than the front. In his view, it was likely that the victim had been lying in the

same pose throughout, indicating that she was either dead or unconscious before the fire started.

c) HeldEven though the applicant had admitted an assault on the victim, both on his own and

then jointly with the unknown man and collected rubbish for the purpose of burning, Mr. Poll'sprime submission was that there was insufficient evidence for a jury necessarily to find that the

applicant's intention was to cause the victim grievous bodily harm at the time of the assault. He

equally submitted that, if the jury came to the conclusion that the applicant did assist in the

burning but, in the light of what he said in his first interview, was or may have been under the

impression that the victim was already dead when she was burnt, a direction should have been

given to the jury that "if a killing by the first act would have been manslaughter, a later

destruction of the supposed corpse should also be manslaughter". This quotation is taken from R

v Church (1965) 49 Cr App R 206, to which we shall return (discussed below).

The judge went on by dealing with the forensic scientist's evidence at page 4N in the

summing up to remind the jury of :


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.Members of the jury, if any person or persons who had hit the deceased against the rocks

rendering her unconscious and then put her body in the hut and set fire to it and the fire was of

such size and intensity, you may think - it is a matter for you - that it is not difficult to draw an

inference from these circumstances, that whoever did these acts must have intended to kill the

deceased, or at the very least to cause her grievous bodily harm. It would be a miracle if she

would have remained alive, or unhurt. Whether you would draw such an inference or not from

this evidence is a matter entirely for you. Who did these acts is perhaps the all-important

question that you have to ask yourself."

Following this, the judge provided a concise account of the prosecution's case of the

matters raised by the defense in cross-examination in order to give a balanced version of events

from the point of view of each side. Having done this, the judge reverted to his final directions inlaw. At page 17G he said:

"Mr. Arthur told you in his opening speech for the prosecution that the other man and woman

the accused mentioned in his statement were only imaginations of the accused and they did not in

fact exist. Members of the jury, if you come to the conclusion, after carefully considering the

evidence that the other man and woman did not in fact exist, you need only to consider whether

the accused killed the deceased alone, without the participation of anyone else.

You will remember what I have told you, that you can accept or reject the whole statement or

can accept part of it and reject the rest if you believe that part is true and the rest is untrue.

However, if you take the view that the other man and woman did in fact exist and they were

acting in what is called a joint enterprise in the killing of the deceased, you can still find the

accused guilty if you are sure that he was a party to the killing in a joint plan.

It is not necessary to prove that the intention or intent existed earlier such as in many cases. It

is sufficient if it is proved that it existed at the time of the killing, that is, at the time of the

infliction of the fatal blow or blows. In other words, in order to prove murder the prosecution

does not have to prove also the motive for the murder. In some cases, it is true, motive may be

useful evidence to decide whether a person who killed did so with intent to kill or to cause

grievous bodily harm."


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Two options leaved to the jury : either the applicant was on his own when the victim met

her death or he was with two others who allegedly played a part in her death. Taking the first

option, it seems to this Court that if the jury was sure that the applicant was alone with the victim

they could have been in no doubt at all that he bore full responsibility for her death. However it

not necessarily have resolved all important question of what his intent had been at the time he

rendered the victim unconscious if the jury believed that the applicant was under the impression

that the girl was already dead when he burnt her body. Moreover, the applicant had only

mentioned the possibility that the victim was already dead when her body was set on fire because

he said he had heard the unknown male say she was dead. Assuming the jury had rejected the

existence of third parties being present, it is far-fetched to think that the jury would place much

reliance on that account. Nevertheless, dead or unconscious, for the jury to have heard that the

applicant burnt her body immediately after he rendered her unconscious, they would have had, in

practical terms, an immensely strong case on which to convict of murder if they were not to

speculate beyond the parameters of the evidence.

Accordingly, for the reasons given, the Court shall give leave and treating the hearing as

the appeal, we allow the appeal. The conviction is quashed and the sentence will be set aside.

Mr. Poll has, it seems to us, accepted that a re-trial should take place and, subject to any

submissions he may wish to make, we order that the applicant remains in custody pending re-

trial on a fresh indictment for murder.

d) Ratio decidendiAs mentioned above, the rationale of the case or reasons for the decision was taken from

R v Church [1965] 2 WLR 1220 ~also been cited as R v Church(1965) 49 Cr App R 206. This

case has the element ofmens rea and actus reus that also been considered in the case ofHKSAR

v Lam Chun Wah (1999) HKCA 314 CACC000646/1997. Mens rea is Latin word for "guilty

mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard

common law test of criminal liability is usually expressed in the Latin phrase ~ actus non facit

reum nisi mens sit rea ~ which means "the act does not make a person guilty unless the mind be

also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by

some level ofmens rea to constitute the crime with which the defendant is charged (see the


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technical requirement of concurrence). As a general rule, criminal liability does not attach to a

person who acted with the absence of mental fault. On the other hand, actus reus, sometimes

called the external element or the objective element of a crime, is the Latin term for the "guilty

act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty

mind", produces criminal liability in the common law-based criminal law jurisdictions of

Canada, Australia, India, Pakistan, New Zealand, England, Ireland and the United States.

Therefore we can conclude that mens rea refers to the mental element of the offence that

accompanies the actus reus.

(i) Facts of the case

On Sunday, May 31, 1964, the dead body of Sylvia Jeannette Nott was found in the River

Ouse within a few yards of the Cyril David Churchs van (the appellant who was almost 21 years

old at that time) which stood near the bank. The face of the corpse had been battered, the hyoid

bone had been broken and there had been some degree of manual strangulation. It looked like

these injuries have caused unconsciousness and eventually death but they were inflicted a half an

hour or an hour before death supervened and did not in fact caused it. According to the medical

evidences, the victims injuries were inflicted not long before Mrs. Nott was thrown into the

river. At that point of time, she was alive and continued to breathe for an appreciable time

afterwards and the main cause of her death was because of drowning. At first interviewed, the

appellant lied about the matter but eventually signed a statement admitting complicity in the

death. He explained that he took Mrs. Nott to his van for sexual purposes but he was unable to

satisfy her and make her reproached him and slapped his face. They started to fight when he

knocked her out and she only moaned. In his statement, he tried to shake her to wake her up for

about half and hour, but getting panicked because Mrs. Nott didnt wake up that make him

dragged her out from the van into the river as he thought she was dead.

(ii) Held

The direction of the irrelevance of the appellants belief when he threw the body into the

river was a misdirection for the true test of irrelevance ofmens rea in manslaughter was that set

out at letter B but the course of conduct of the appellant could rightly, in relation to manslaughter


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as to murder, be viewed as a series of acts culminating in her death, and on that basis it did not

matter in the present case whether the appellant believed her to be alive or dead at the time of

immersion, and accordingly this was a proper case in which to proviso to s.4 (1) of the Criminal

Appeal Act, 1907 and the appeal would be dismissed.

(iii) Appeal

On July 23, 1964, Cyril David Church makes an appeal against his conviction at

Nottingham Assizes before GLYN-JONES.J., and a jury of manslaughter. He also applied for

leave to appeal against the sentence of fifteen years imprisonment imposed on him. On July,

1964 at Nottingham Assizes, the appellant, having been indicated for and acquitted of the murder

of Mrs. Nott, was found guilty of manslaughter and was sentenced fifteen years imprisonment

by GLYN-JONES.J., He now appeals to this court on a point of law against that conviction and

applies for leave to appeal against sentence.

The outline of this case was the gravity of the injuries inflicted during life clearly pointed

to an intention by the appellant to cause grievous bodily harm to or death of Mrs. Nott. Her death

was in fact caused by the action of the appellant who throwing her still-living body into the river.

The trial jury has told that they could not convict of murder unless it had been proved that the

applicant knew that Mrs. Nott was still alive when he threw her into the river or (at least) that hedid not then believe she was dead.

Against the background of the basis direction regarding the nature of the Crowns burden

of proof as to murder, it seems to this court that at least three possible bases of the manslaughter

verdict call for consideration which were : a) criminal negligence b) provocation and c)

diminished responsibility. The final held/conclusion was that the appellant conduct amounted to

a series of acts, which culminated in her death and thus constituted manslaughter (Guilty of

manslaughter). The evidence was :

Edmund Davies, J:

An unlawful act causing the death of another cannot, simply because it is an unlawful act,

render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful


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act must be such as all sober and reasonable people would inevitably recognise must subject the

other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.

A grosser case of criminal negligence it would be difficult to imagine.

Thus, the application for leave to appeal against sentence is accordingly also dismissed.

(iv) Comment/Recommendation

I am so agree with the held or decision made by the Court in both cases because any act that

related to manslaughter is very serious even though the doer has or does not has the intention to

kill somebody especially in the event when no witnesses is around at the time of occurrence

because it can be a good lesson for all not to take advantage on the weak person especially

woman and kids. Yes, although it is very subjective to determine the doers real intention

because the intention cannot be measures but some strict action must be taken to show that as an

individual in the large community, there are powerful legal entity around us that always

watching us to ensure that we live peacefully together for the sake of our country. Everyone need

justice and entitled to it, just like a wise saying, treat others like you want to be treated.


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2.1.3 The District CourtIt hears civil disputes of a value over $50,000 but not more than $1 million. Its criminal

jurisdiction is limited to 7 years' imprisonment. 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 limited appellate jurisdiction in hearing appeals from tribunals and statutory bodies

conferred on it under various ordinances, including the Stamp Duty Ordinance (Cap 117), the

Pneumoconiosis (Compensation) Ordinance (Cap 360) and the Occupational Deafness

(Compensation) Ordinance (Cap 469).

(i) The Family Court : It deals mainly with divorce cases and related matters such asmaintenance and the welfare of children.

2.1.4 The Magistrates' CourtsThere are seven types of Magistrates' Courts. They exercise criminal jurisdiction over a wide

range of indictable and summary offences meriting up to 2 years' imprisonment and a fine of

$100,000. However, a growing number of ordinances give magistrates the power to impose

sentences of up to 3 years' imprisonment and substantially larger fines (for some offences up to

$5 million).

(i) The Coroner's Court : The Coroner's Court inquires into deaths which occur as aresult of accident or violence, or under suspicious circumstances, when a person dies

suddenly, or when a dead body is found in or brought into Hong Kong.

(ii) The Juvenile Court : The Juvenile Court has jurisdiction to hear charges againstchildren (aged under 14) and young persons (aged between 14 and 16) for any

offence other than homicide. 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. However,

the Juvenile Court does have power to deal with care and protection cases involving

young people aged up to 18. It sits in the Eastern, Kowloon City, Tsuen Wan, Fanling

and Tuen Mun Magistrates' Courts.


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(iii) The Lands Tribunal : It deals with cases arising from tenancy disputes and mattersin relation to building management. The Tribunal also hears applications for the

determination of compensations caused by land resumption, appeal against the

assessment of ratable value / government rent or market value of property under the

Housing Ordinance.

(iv) The Labour Tribunal : It deals with labour disputes. There is no upper limit on theamount of claim, but the Tribunal only hears cases which the amount of claim

exceeds $8,000 for at least one of the claimants in a claim or which the number of

claimants in the claim exceeds 10. Hearings are informal and no legal representation

is allowed.

(v) The Small Claims Tribunal : It hears civil claims within its jurisdiction of up to$50,000. Hearings are informal and no representation by lawyers is allowed.

(vi) The Obscene Articles Tribunal : It determines and classifies whether or not anarticle or other matter publicly displayed is obscene or indecent.

(vii) Commissions and Commissioners : In addition to the judicial and administrativetribunals described above, there are a number of other bodies set up to oversee

compliance with specific legislation and to which members of the public may have

channels to speak out if they feel aggrieved. Some of them may be closely related to

our daily lives such as the Office of the Ombudsman, the Equal Opportunities

Commission and the Privacy Commissioner's Office.


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2.2 THE HIERARCHY OF HONG KONG COURT SYSTEM


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2.3 ALTERNATIVE DISPUTE RESOLUTION (ADR)

Apart from courts and tribunals, there are other methods of dispute resolution. According

to Wikipedia, ADR includes dispute resolution processes and techniques that act as a means for

disagreeing parties to come to an agreement short of litigation. There are generally 4 types of

ADR : Arbitration, mediation and conciliation, negotiation and ombudsman and others.

2.3.1 Arbitration

In Hong Kong, arbitration has become the most popular ADR method and governed by the

Arbitration Ordinance (Cap 341). It involves the appointment of a third party as an arbitrator. It

is an expensive as litigation but is usually speedier. The parties will usually be legally

represented and will call witnesses who are then subject to examination and cross-examination.

The Hong Kong International Arbitration Centre (HKIAC) was established on 1985 and act as an

independent and impartial focus for the development of all forms of dispute resolution in the

HKSAR and Asia Pacific. In 2004, HKIAC has handled up to 280 cases and the number

increases to 602 cases in 2008. It is expected that there will be a further increase in such cases in

the future, not only because of the increased popularity of arbitration as a means of dispute

resolution but also because of the growth of the HKSAR as a regional dispute resolution centre

and its closer ties with the Mainland.

In 2005, the Department of Justice established a Working Group on alteration of arbitration law.

They issued a consultation paper incorporating a draft Arbitration Bill in December 2007. The

purpose of this paper is to suggest that the distinction between domestic and international

arbitrations should be abolished and the Model Law should become the basis for arbitration law

in Hong Kong. This will reinforce Hong Kong as a leading centre for international arbitrationand dispute resolution as the Model Law is widely accepted by other jurisdictions and is familiar

to practitioners from civil law as well as common law jurisdictions. Apart from that, due to its

developed law system and geographical location, Hong Kong has been known as one of the

preferred places for foreign dispute settlement especially cases that involved with Asian foreign

investors.


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2.3.2 Mediation and Conciliation

In this process a neutral third party is appointed to try to achieve a resolution of the dispute

without having to resort to the courts or tribunals. This method often used in disputes involving

family law (undertaken by the Hong Kong Marriage Advisory Council), rental disputes in public

housing (undertaken by the Housing Authoritys Rating and Valuation Department) and

increasingly in building construction disputes. Both of the arbitration and mediation approaches

take place outside the formal court process, and that frees up valuable court resources. 6

Mediation and conciliation are usually synonymous in Hong Kong. However there are some who

draw the distinction that a conciliator facilitates the discussions and communications between the

parties so that they, themselves, can reach a mutually agreed resolution. In other countries,

conciliation in labor disputes that claims for increase in salary (example) is compulsory before

parties can resort to a more formal process or else the labors will go on strike. Unlikely in Hong

Kong, the practice is voluntary and has largely arisen out of the practices of the Labor

Department.

2.3.3 Negotiation

The parties in a commercial dispute will usually try to negotiate a settlement and thus avoid the

costs of lengthy litigation. Some form of a voluntary informal process that involved the parties or

their legal representatives will be attempted to resolve the dispute. Negotiation does not involve

a third party and this characteristic make it differs from another main forms of ADR. It also has

significance for the foreign affairs law.

6http://www.google.com.my/url?q=http://www.aoc.state.nc.us/www/public/courts/meck/disk01/glossary.html&s

a=X&ei=n7yMTe6nC4HmrAeJmtXiDQ&ved=0CAgQpAMoAQ&usg=AFQjCNFSWmASVObJJHLjFixBA-jSHmxw5w


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2.3.4 Ombudsman and Others

This is also an important example of ADR in Hong Kong. It includes the office of the

Commissioner for Administrative Complaints (often called the Ombudsman) which hears

complaints from persons concerning the actions of the various Government Departments and the

Social Security Appeal Board which hears appeals from persons dissatisfied with decisions

regarding the payment of or eligibility for social welfare. The example is criminal offences like

the cautioning of juveniles by police which is a formal process that seeks to avoid recourse to a

criminal trial.


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3.0 CONCLUSION

As well as other countries, Hong Kongs law system is about to promote justice and

fairness in the country. Law is made to protect and regulate society and ensuring the societys

continued existence. As discussed above, Basic Law is the principal source of law in Hong Kongthat took effect on 1 July 1997 on the establishment of the Hong Kong Special Administrative

Region (HKSAR). 7 main classifications of laws in Hong Kong are National Law and

International Law, Public Law and Private Law, Substantive Law and Procedural Law, Common

Law and Legislation, Common Law and Equity, Common Law and Civil Law and Criminal Law

and Civil Law.

The courts of justice in Hong Kong are the Court of Final Appeal, the High Court (which

comprises the Court of Appeal and the Court of First Instance), the District Court (including the

Family Court) and the Magistrates' Courts. Last but not least, in order to settle dispute there are

generally 4 types of Alternative Dispute Resolution (ADR) which are arbitration, mediation and

conciliation, negotiation and ombudsman and others that has been used there where arbitration

has become the most popular ADR method.


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ATTACHMENTS


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REFERENCES

Ian Dobinson and Derek Roebuck (1996), Introduction to Law in the Hong Kong SAR,

Sweet & Maxwell Asia

J.T. Edgerley (1965), The All England Law Reports 1965 Volume 2, London

Butterworths

Steve Tsang (2001), Judicial Independence and the Rule of Law in Hong Kong, Hong

Kong University Press

Peter Wesley-Smith & Albert HY Chen (1988), The Basic Law and Hong Kongs Future,

Hong Kong : Butterworths

http://www.associatedcontent.com/article/1410399/the_4_classifications_of_law.html

http://www.doj.gov.hk/eng/laws/

http://encyclopedia.thefreedictionary.com/basic+law

http://ezinearticles.com/?HK-Alternative-Dispute-Resolution-%28ADR%29---Practice-

Direction-31&id=5067813

http://lib.hku.hk/lawlib/pdf/hklaw.pdf

http://www.hkclic.org/en/topics/hkLegalSystem/courtsStructureAndTheJudiciary/index.shtml

http://www.hklii.org

http://www.hklii.org/cgi-hklii/disp.pl/hk/jud/eng/hkca/1999/CACC000646_1997-

06254.html?query=~+murder

http://hub.hku.hk/handle/10722/10414

http://en.wikipedia.org/wiki/Hong_Kong_Basic_Law

http://en.wikipedia.org/wiki/Law_of_Hong_Kong

http://en.wikipedia.org/wiki/Statute_law

law.hku.hk/gl/1C2S.ppt

http://www.e-lawresources.co.uk/R-v-Church.php


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http://en.wikipedia.org/wiki/Hong_Kong

http://www.mediationcentre.org.hk/eng/

http://law.hku.hk/lawgovtsociety/nature.htm

http://en.wikipedia.org/wiki/Alternative_dispute_resolution

http://sixthformlaw.info/02_cases/mod3a/cases_38_invol_uada.htm#Church,%20R%20v%20%2

81965%29


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