1. What are the differences between Criminal and Civil Litigation in Hong Kong?
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.
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 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.