Anaya Nolan
Hong Kong's legal system is a hybrid of civil law and common law, developed under British governance and based on the English common law system. The Hong Kong Basic Law, a piece of National Law of the People's Republic of China, provides the constitutional framework for the Hong Kong Special Administrative Region (HKSAR). The Basic Law maintains the common law system, and Article 8 stipulates that all laws in force before 1997, including common law, are to be maintained, except for any that contravene this Law, and subject to amendment by the HKSAR legislature. Common law and the rules of equity are found primarily in the judgments of superior courts in the HKSAR and other common law jurisdictions, with a key feature being reliance on a system of case precedent.
| Characteristics | Values |
|---|---|
| Foundation | English common law system |
| Legal system development | Under British governance |
| Primary sources of law | Statutes enacted by the Legislative Council of Hong Kong and case law made by decisions of the courts of Hong Kong |
| Constitutional framework | Hong Kong Basic Law |
| Hierarchy of laws | Hong Kong Basic Law, legislation in force before 1 July 1997, laws enacted by the Legislative Council of Hong Kong after 1997, PRC laws listed in Annex III to the Basic Law, common law and equity, subordinate legislation, customary law |
| Number of PRC laws currently applied in HKSAR | 12 |
| Family law basis | English and Welsh counterpart |
| Commercial contract interpretation | Using "commercial common sense", but cannot "construct" a contract to accommodate profit or other expectations |
| System | Theoretically hybrid system of civil law and common law |
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What You'll Learn
Hong Kong's legal system is based on English common law
The Basic Law provides that all laws in force before 1997, including common law, rules of equity, ordinances, subordinate legislation, and customary law, shall be maintained, unless they contravene the Basic Law or are amended by the legislature of the Hong Kong Special Administrative Region. The primary sources of law in Hong Kong are statutes enacted by the Legislative Council of Hong Kong and case law made by decisions of the courts of Hong Kong.
Hong Kong's legal system has been described as a theoretically hybrid system of civil law and common law, with some commentators noting its uniqueness, while others point to the socialist law tradition instead of the civil law tradition. Hong Kong's family law, for example, is heavily modelled on its counterpart in England and Wales, with important modifications. It does not have a statutory matrimonial property regime, and property rights are not affected by marriage.
The common law system in Hong Kong is characterised by its reliance on a system of case precedent, drawing on reported judgments from superior courts in the HKSAR and other common law jurisdictions. These reported cases have established legal principles regulating the relationship between the state and citizens, as well as between citizens themselves. The rights relating to freedom of speech, freedom of assembly, and freedom from arbitrary arrest or imprisonment, for instance, have been upheld in cases decided centuries ago and are now further protected by provisions in the Basic Law.
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Hong Kong's Basic Law is the foundation of its constitutional framework
Hong Kong's legal system was developed under British governance, based on the English common law system. Since the handover in 1997, the constitutional framework has been provided by the Hong Kong Basic Law, which is a piece of National Law of the People's Republic of China. The Basic Law was composed to implement Annex I of the 1984 Sino-British Joint Declaration and was enacted under the Constitution of China when it was adopted by the National People's Congress on 4 April 1990. It came into effect on 1 July 1997, replacing Hong Kong's colonial constitution of the Letters Patent and the Royal Instructions.
The Basic Law is a constitutional document of the Hong Kong Special Administrative Region (HKSAR) and contains the essentials of the constitutional framework in the HKSAR. It sets out clearly the country's basic policies regarding Hong Kong, including the "'one country, two systems' principle, such that the socialist governance and economic system practised in mainland China would not be extended to Hong Kong. The Basic Law also enshrines within a legal document the important concepts of "Hong Kong people administering Hong Kong" and a high degree of autonomy.
Article 8 of the Basic Law stipulates that all laws in force before 1997, including the common law, rules of equity, ordinances, subordinate legislation and customary law, shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the HKSAR. Article 18 further states that national laws from the People's Republic of China do not apply, except for a specific list in Annex III to the Basic Law, to which the Standing Committee of the National People's Congress can add or delete what it chooses. However, this only applies to the fields of "defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law".
The Basic Law also contains provisions that offer protection for human rights and provides that the common law system shall be maintained. It is important for Hong Kong people, Mainland residents, as well as people in other countries to get to know the Basic Law, as it safeguards the prosperity and stability of Hong Kong and protects the rights and freedoms of Hong Kong residents.
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Hong Kong's family law is modelled on England and Wales
Hong Kong's legal system is rooted in the English common law system, inherited from its history as a former British colony and dependent territory. The Basic Law, which acts as Hong Kong's mini-constitution, guarantees the maintenance of the common law system and ensures the region's legal autonomy from mainland China.
Hong Kong's family law is heavily modelled on its counterpart in England and Wales, with some important modifications. Matters such as marriage, divorce, child custody, and inheritance are governed by legal principles that align closely with English and Welsh law. For example, divorce in Hong Kong can be granted on similar grounds to those in English law, such as the irretrievable breakdown of marriage, desertion, or unreasonable behaviour.
However, Hong Kong does not have a statutory matrimonial property regime. There is no concept of a "community of property," and property rights are generally not affected by marriage. Instead, Hong Kong's family courts have broad discretion to make financial orders upon divorce, including periodical payments, lump sum payments, and property transfers or settlements. These orders are guided by principles of fairness and the best interests of any children involved.
In addition to family law, other areas of Hong Kong's legal system also reflect the influence of English and Welsh law. For instance, Hong Kong's administrative law, particularly judicial review procedures and grounds, is modelled on its English and Welsh counterpart. Similarly, the published, consolidated Ordinances in Hong Kong, which are the primary form of legislation, are crafted to analyse and discuss the history, interpretation, and application of each Ordinance, modelled on Halsbury's Statutes of England and Wales.
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Hong Kong's primary legislation is known as 'Ordinances'
Hong Kong's legal system is based on the English common law system, inherited from its time as a British colony and dependent territory. The Hong Kong Basic Law, a piece of National Law of the People's Republic of China, has provided the constitutional framework for the Hong Kong Special Administrative Region since the handover in 1997.
Article 8 of the Basic Law stipulates that all laws in force before 1997, including common law, rules of equity, ordinances, subordinate legislation, and customary law, shall be maintained, except for any that contravene the Basic Law or are amended by the legislature of the Hong Kong Special Administrative Region.
Hong Kong's primary legislation is known as Ordinances, which are the legislative enactments of Hong Kong. These Ordinances are published and given chapter numbers in the Laws of Hong Kong and in the official online database. There are currently 1181 ordinances in effect, along with an assortment of subsidiary legislation associated with them.
Some examples of Ordinances in Hong Kong include the National Flag and National Emblem Ordinance, which is a local statute enacted to give effect to the Law of the People's Republic of China on the National Flag. Hong Kong also has a Bill of Rights Ordinance, which is a local adaptation of the International Covenant on Civil and Political Rights. Other Ordinances include the Personal Data (Privacy) Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance, Sex Discrimination Ordinance, and Race Discrimination Ordinance, all of which help ensure the protection of human rights outlined in the Basic Law and the Bill of Rights.
The Companies Registry is responsible for administering and enforcing the Companies Ordinance and other related ordinances, with functions such as the incorporation and deregistration of companies, prosecution of companies for breaches of regulatory provisions, and advising the government on policy and legislative issues related to company law.
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Hong Kong's legal system is a hybrid of civil and common law
Hong Kong's legal system is a unique hybrid of civil and common law. The common law system is a legacy of British colonial rule, and it continues to form the foundation of Hong Kong's legal framework even after the handover to Chinese sovereignty in 1997. The Hong Kong Basic Law, which serves as the region's constitutional framework, stipulates that the common law system shall be maintained. This principle of "one country, two systems" is enshrined in Article 5 of the Basic Law until at least 2047, allowing Hong Kong to retain its distinct legal system.
The primary sources of law in Hong Kong are statutes enacted by the Legislative Council of Hong Kong and case law made by the decisions of its courts. The common law and rules of equity are found in the judgments of the superior courts in the Hong Kong Special Administrative Region (HKSAR) and other common law jurisdictions. The common law system relies on a system of case precedent, drawing on reported cases from various jurisdictions to establish legal principles. This body of case law has spelled out rights such as freedom of speech, freedom of assembly, and freedom from arbitrary arrest or imprisonment.
While Hong Kong's legal system is predominantly based on common law, it also incorporates elements of civil law. Some commentators have pointed to the influence of the socialist law tradition, particularly since the handover to China. The Basic Law provides for the application of specific PRC laws in Hong Kong, particularly in areas of defence, foreign affairs, and other matters outside the Region's autonomy. For example, the Law of the People's Republic of China on the National Flag takes effect in Hong Kong through a local statute enacted by the local legislature.
Hong Kong's legal system, therefore, operates as a hybrid of common law and civil law influences. This blend of legal traditions reflects the region's unique history and political context, balancing its former ties to the British legal system with its current sovereignty under the People's Republic of China. The result is a legal framework that adapts and combines legal traditions to suit the needs and context of Hong Kong.
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Frequently asked questions
Yes, Hong Kong's legal system is based on the English common law system, inherited from its time as a British colony.
The primary sources of law in Hong Kong are statutes enacted by the Legislative Council of Hong Kong and case law made by the decisions of the courts of Hong Kong.
The constitutional framework of Hong Kong is provided by the Hong Kong Basic Law, which is a piece of National Law of the People's Republic of China.
Some commentators describe Hong Kong's hybrid system of civil law and common law as unique, although there are similar arrangements elsewhere in the world.
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