The main difference
between criminal and civil proceedings is that the former are instituted
under the name of the HKSAR to suppress crimes and to punish criminals,
while the latter are taken to protect and to recover properties or to
enforce obligations.
Criminal Proceedings
The Secretary for Justice of the HKSAR
Government has overall responsibility for conducting criminal 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. In determining whether or not to
prosecute, the Secretary considers two issues: First, is the evidence
sufficient to justify the institution of proceedings? Second, if it
is, does the public interest require a prosecution to take place? In
making that decision the Secretary for Justice is not subject to any
instructions or directions from Government Executive bodies.
In practice, many prosecutions at
the summary level (less serious or simple cases) which are processed
by the Police or other investigative bodies do not require the specific
involvement of the Secretary for Justice. At the same time, all such
cases are scrutinized at the Magistrates Courts by Senior Court Prosecutors
acting on behalf of the Secretary.
The most serious criminal offences
such as murder, manslaughter, rape, armed robbery and certain drug
offences are tried by a judge at the Court of First Instance of High
Court with a jury of seven or nine people. The sole duty of the jury
is to decide 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.
A number of principles of defence
in criminal cases, which are in accordance with Article 14 of the International
Covenant on Civil and Political Rights (which has been applied to Hong
Kong by the Hong Kong Bill of Rights Ordinance (Cap 383), have been
incorporated in the Criminal Procedure Ordinance (Cap 221),
Legal Aid in Criminal Cases Rules (Cap 221D), or absorbed into the common law.
The Basic Law guarantees the preservation of these rights and some
of the major rights include:-
- the presumption of innocence before conviction;
- the burden of proof lies on the prosecution;
- the standard of proof is one of beyond reasonable
doubt;
- the right to have legal representation;
- the right to appeal against conviction and/or
sentence.
Civil Proceedings
Civil proceedings can be instituted
by: i) The Government against individuals (including private corporations)
and vice versa; or ii) individuals against other individuals.
The standard of proof is based on the balance of probabilities and is easier
to discharge in a civil case than in a criminal case.
A jury may also be present in some civil
cases (e.g. defamation) when the plaintiff or the defendant applies
to the court to have the case tried by a jury.
The principal branches of civil
law include contract, tort, property, administrative, family and revenue
law. The law of contract is concerned with the many different types
of agreements in which persons or corporations enter into during their
daily business. The law of tort is concerned with claims arising out
of breaches of a duty of care owed by one individual to another.
The law of property governs the ownership
of and the rights in property. This includes land and buildings, and
intellectual property such as trademarks, patents and copyright.
Administrative law is designed to
protect the individual against the abuse of power by the Government
or public bodies. Family law deals with divorce and disputes over the
custody of children, maintenance of spouse and children and the division
of property. Revenue law is relevant to the assessment and recovery
of taxes and duties. |