Cecily Zamora
Hong Kong's legal system is distinct from that of mainland China. Since the handover from British to Chinese sovereignty in 1997, Hong Kong has been governed by the Basic Law, which outlines the region's `one country, two systems` principle and guarantees certain freedoms and rights for Hong Kong residents, including freedom of speech, assembly, and independent judiciary. However, in recent years, China has introduced a controversial national security law (NSL) in Hong Kong, which has raised concerns about the erosion of human rights and the region's autonomy. The NSL criminalizes a broad range of dissenting acts, and Hong Kong authorities have the power to send some cases to be tried in mainland China. The interpretation and implementation of the Basic Law and NSL have been a subject of debate and tension between Hong Kong and China, with critics arguing that Hong Kong's autonomy and freedoms are being increasingly restricted.
| Characteristics | Values |
|---|---|
| Relationship with China | Hong Kong is a Special Administrative Region of the People's Republic of China. |
| System of Government | Hong Kong operates under the "one country, two systems" principle, maintaining its capitalist system and way of life, independent judiciary, and certain democratic rights and freedoms that are not present in mainland China. |
| Legal Profession | Hong Kong's legal profession includes both solicitors and barristers, with a presence of foreign law firms. |
| Basic Law | The Basic Law is a National Law of the People's Republic of China that serves as the constitutional framework for Hong Kong. It consists of nine chapters, 160 articles, and three annexes, outlining the system of government, sources of law, branches of government, relationship with the Chinese Central Government, and fundamental rights and duties of Hong Kong residents. |
| Legislative Power | Hong Kong has limited power to engage in international affairs and can enter into bilateral agreements in specific fields. Hong Kong courts can interpret the Basic Law within the scope of Hong Kong's autonomy but must follow interpretations from the National People's Congress Standing Committee (NPCSC) of China. |
| National Security Law | Hong Kong introduced a controversial national security law (NSL) in 2020, criminalizing secession, subversion, terrorism, and collusion with foreign forces, with maximum sentences of life imprisonment. |
| Article 23 | Article 23 of the Basic Law, enacted as national security legislation, introduces mainland China's broad definition of "state secrets" and creates new offences for ""external interference" and "acts endangering national security in relation to computers or electronic systems." |
| Human Rights | The Basic Law and Hong Kong's Bill of Rights Ordinance provide protection for human rights, including freedom of speech, assembly, and movement, as well as rights against arbitrary arrest, unlawful detention, torture, and arbitrary deprivation of life. |
| Judicial Assistance | Hong Kong and China have mutual judicial assistance provisions, with Hong Kong sending some cases to be tried in mainland China. |
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What You'll Learn
Hong Kong's Basic Law
The Basic Law was enacted by the National People's Congress on April 4, 1990, and came into effect on July 1, 1997, after the handover of Hong Kong from the United Kingdom to China. It replaced the Letters Patent and the Royal Instructions as Hong Kong's main constitutional document, outlining the basic policies and principles for Hong Kong's governance under Chinese sovereignty.
Under the Basic Law, Hong Kong maintains a high degree of autonomy with its own executive, legislative, and judicial branches. It describes the sources of law, the branches of government, and the relationship between Hong Kong and the Chinese Central Government. The law also outlines the fundamental rights and duties of Hong Kong residents, including freedoms of speech, press, assembly, religion, and movement, as well as protections against arbitrary arrest and detention.
The Basic Law also provides the Hong Kong government with limited powers to engage in international affairs. It allows Hong Kong, under the name "Hong Kong, China", to enter into bilateral agreements with non-Chinese regions and international organisations in specific fields, such as commerce, trade, and culture. Interpretations of the Basic Law can be made by either the Standing Committee of the National People's Congress (NPCSC) or Hong Kong courts, with the NPCSC having the final interpretive power.
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Hong Kong's autonomy
The Basic Law provides for certain freedoms and rights for Hong Kong residents, including freedom of assembly, speech, and an independent judiciary, which are protected by the Bill of Rights Ordinance. Hong Kong residents also have the right to freedom of movement, religion, and association, as well as the right to form and join trade unions. These rights are not universally enjoyed in mainland China.
However, Hong Kong's autonomy has been a subject of concern, particularly with the introduction of the National Security Law (NSL) in 2020. The NSL criminalises a broad range of dissenting acts, including secession, subversion, terrorism, and collusion with foreign forces. Critics argue that the NSL has created a climate of fear and eroded human rights in Hong Kong, with the law's vague wording providing scope for arbitrary law-making and the suppression of opposition voices.
The NSL grants Hong Kong police greater powers, including the ability to issue NSL arrest warrants for individuals overseas and to punish "absconders" accused of national security offences. It also introduces mainland China's broad definition of "state secrets," giving the Chief Executive of Hong Kong the authority to determine what constitutes a state secret.
While Hong Kong has some autonomy in interpreting the Basic Law, ultimately, the National People's Congress Standing Committee (NPCSC) in Beijing has the power of final interpretation. This interpretive power allows the NPCSC to modify local laws without recourse from Hong Kong courts or the government, effectively limiting Hong Kong's autonomy in legal matters.
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Freedom of speech
Hong Kong's Basic Law guarantees its residents freedom of speech, freedom of the press, and publication freedom. Article 27 of the Basic Law and Article 16 of the International Covenant on Civil and Political Rights protect these rights. Hong Kong's freedom of speech and press freedoms are distinct from those in mainland China, where control over media is pervasive.
Despite these protections, there have been concerns about increasing censorship in Hong Kong and the erosion of its freedom of speech. In 2022, Hong Kong ranked 148th on the Press Freedom Index, a significant decline from its previous ranking of 71st in 2015. The Hong Kong Journalists Association has warned of a "death knell of freedom of speech" due to increasing self-censorship pressures.
In 2020, the Hong Kong national security law granted the Commissioner of Police the authority to compel cooperation or remove content deemed a threat to national security. There are now also prohibitions on inciting hatred against the Chinese or Hong Kong governments. Critics argue that this law grants the government more power to quash dissent and that the threats outlined in the law are "poorly defined and incredibly vague."
The Safeguarding National Security Ordinance (SNSO), passed in 2023, created new national security offences with vague definitions, increased penalties for existing offences, and entrenched the local government's enforcement powers. The SNSO has been criticised for expanding provisions that punish intention, expressly covering acts or speech that do not incite violence.
There have also been reports of Hong Kong activists and dissidents facing pressure and threats to their freedom of speech, both within Hong Kong and abroad. Hong Kong's national security police have issued arrest warrants for activists overseas, accusing them of breaching the national security law. Additionally, a former Hong Kong politician and democracy campaigner, Carmen Lau, accused British police of asking her to "self-censor" and avoid public gatherings after her neighbours received bounty letters offering rewards for information on her movements.
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National security law
Hong Kong's Basic Law is a Chinese national law that outlines the system of government of Hong Kong as a Special Administrative Region. It was drafted in 1984, when Hong Kong was still under British colonial rule, and came into force in 1997. The Basic Law guarantees Hong Kong residents certain freedoms, including freedom of speech, assembly, and independent judiciary, which are not afforded to mainland Chinese citizens.
Article 23 of the Basic Law states that Hong Kong "shall enact laws on its own" to prohibit specific national security offences. However, a previous attempt to introduce this law in 2003 was scrapped due to mass protests. In 2019, China proposed an extradition bill that would allow Hong Kong suspects to be extradited to mainland China for trial, sparking widespread protests in Hong Kong. In response, China passed the National Security Law (NSL) in 2020, which came into force on 30 June.
The NSL criminalises secession, subversion, terrorism, and collusion with foreign organisations. It imposes stringent penalties, including life imprisonment, for a wide range of vaguely defined actions, such as "treason" and "insurrection". Critics argue that the NSL grants the Hong Kong government more power to suppress dissent and has led to a climate of fear in the city, causing tens of thousands of Hongkongers to leave. The law has also been condemned by several countries, including the United Kingdom, which considers it a breach of the 1984 Sino-British Joint Declaration that guaranteed Hong Kong's autonomy for 50 years.
The NSL establishes Hong Kong's own national security commission, with a Beijing-appointed adviser, to enforce the law. Beijing has the authority to interpret the law, and its laws take priority over any conflicting Hong Kong legislation. The NSL introduces mainland China's broad definition of "state secrets", which can relate to various fields, and grants the Chief Executive the power to certify what constitutes a "state secret". The law also creates the new offence of "external interference", punishable by up to 14 years in prison, and expands the scope of the sedition law, increasing the maximum sentence to seven years.
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Foreign law firms
Hong Kong operates under the "one country, two systems" principle, which means that despite being a part of China, it has a separate legal system and set of laws from mainland China. The Basic Law of Hong Kong, a Chinese national law, outlines the region's system of government and describes the relationship between Hong Kong and the Chinese Central Government.
Hong Kong's legal market has seen significant changes over the past decade, with an increasing focus on China-facing lawyers and the potential of the dynamic Chinese economy. The number of registered foreign law firms in Hong Kong has been rising, with an over 15% increase in 2024. Foreign law firms are attracted to Hong Kong due to its dynamic legal market, which includes a steady flow of M&A, IPO, and other transactional work.
- The firm can be structured as a partnership or a sole proprietorship, with partnerships taking the form of either a general partnership or a limited liability partnership.
- All partners intending to practise in Hong Kong must be foreign lawyers registered with the Law Society.
- A registered foreign law firm can practise the law of the jurisdictions in which their partners and associates are qualified and competent to practise, but they cannot practise Hong Kong law or employ practising Hong Kong solicitors.
- The firm must establish a place of business in Hong Kong within 2 months of registration.
- One way to enter the Hong Kong legal market is to practise the law of the firm's home jurisdiction as a registered foreign law firm. Another way is to establish an Association with a Hong Kong firm, sharing premises, management, personnel, and profits.
Some examples of foreign law firms with a presence in Hong Kong include YYC Legal LLP, Charltons, and Oldham, Li & Nie (OLN).
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Frequently asked questions
Yes, Hong Kong has a separate legal system to mainland China.
The "one country, two systems" principle is enshrined in Article 5 of the Basic Law of Hong Kong, which is a piece of National Law of the People's Republic of China. It was agreed upon when Hong Kong was handed back to China from British rule in 1997. It states that Hong Kong will maintain its capitalist system and way of life for at least 50 years, until 2047.
The Basic Law is the constitutional framework of Hong Kong, outlining the system of government, the branches of government, the relationship between Hong Kong and the Chinese Central Government, and the fundamental rights and duties of Hong Kong residents.
Article 23 is a national security law that was passed in March 2024. It introduces mainland China's broad definition of "state secrets", gives the Chief Executive of Hong Kong the authority to certify "state secrets", and creates the new offence of "external interference", which carries a maximum sentence of 14 years.
The NSL was introduced by China in 2020 in response to the protests in Hong Kong the year before. It criminalises secession, subversion, terrorism, and collusion with foreign or external forces, with a maximum sentence of life in prison. Critics argue that it has created a climate of fear in the city and eroded human rights.
