The University of Hong Kong
Department of Law
Academic Year of 2021-2022
Examiner’s Report
Course code: JDOC1007 Course title: Legal System and Legal Research
Report prepared by: Dr. Eric C. Ip (Legal System Component) Date: 16 January 2022
The format of the examination for the Legal System component of JDOC1007 is as
follows: a two-hour, open-book, in-hall examination (50% of the final grade) consisting
of two compulsory questions. A total of 55 students sat for the examination. All of them
achieved a Pass grade. None of them failed this component. The examiner is very pleased
with the overall performance of the candidates. Most were able to back up their answers
with relevant legal authorities and relevant factual examples. And many were able deploy
sound arguments to address most of the issues raised by the questions.
Question One (50 marks)
“The common law tradition in the Hong Kong Special Administrative Region has
given judges of the Court of Final Appeal – already unaccountable to the general
public or the legislature – excessive power and dominance over the entire legal
system.”
Critically discuss this statement with reference to relevant legal authorities and
examples.
Excellent answers mentioned and discussed the following issues:
Articles 8 and 18 of the Basic Law preserve the common law tradition of Hong
Kong, which was established during British rule prior to 1 July 1997.
The Hong Kong Court of Final Appeal is a superior court of record consisting of
permanent and non-permanent judges; non-permanent judges include non-
permanent Hong Kong judges: s.8, Hong Kong Court of Final Appeal Ordinance
(HKCFAO); and judges from other common law jurisdictions: s.9, HKCFAO.
The common law tradition is in many ways defined by the doctrine of precedent:
Solicitor (24/07) v Law Society of Hong Kong (2008). Precedents created by the
Court of Final Appeal bind every court below, within the legal system. However,
the Court of Final Appeal is not bound by its own precedents, nor those of any
court, including the Judicial Committee of the Privy Council on appeal from Hong
Kong. This enables the Court of Final Appeal to influence the direction of the law
of the entire legal system with considerable discretion. That being said, the Court
of Final Appeal rarely departs from its own precedents.
Besides, the common law tradition, as reinforced by the Basic Law (e.g., Article
85), places great emphasis on judicial independence, including both the
independence of the courts and the independence of individual judges. Examples
of guarantees of judicial independence should be mentioned; for instance, judges
1
are immune from legal action in the performance of their legal duties: Article 85
of the Basic Law, and it is difficult to remove a judge from office: Article 89(1) of
the Basic Law, especially the Chief Justice: Article 89(2) of the Basic Law.
However, notwithstanding the doctrine of precedent and extensive guarantees of
judicial independence, judges of the Court of Final Appeal are subject to a number
of checks, e.g., (1) Constitutional overrides: interpretations of the Basic Law by
judges of the Court of Final Appeal can be easily overridden by a Standing
Committee Interpretation: Article 158 of the Basic Law; (2) Statutory overrides:
case law principles and interpretations of statutes by the Court of Final Appeal can
be overridden an Ordinance enacted by the Legislative Council with the consent
of the Chief Executive; (3) Appellate overturns: judgments, except those of the
Court of Final Appeal, can be appealed to a higher court; (4) The Court of Final
Appeal cannot initiate new policy on its own: they must wait for a new case to rise
before they can adjudicate, but the new case may not be their favourite area either;
(5) The Court of Final Appeal cannot control its own budget: the judicial budget
is first submitted to the Government, and it is for the Government to decide how
to incorporate the judicial budget into its overall budget proposal to the Legislative
Council; (6) The Legislative Council can veto judicial nominations to the Court of
Final Appeal.
Excellent answers concluded with informed, coherent, and sound judgments about
whether judges of the Court of Final Appeal are unaccountable to the general
public or the legislature and whether they exercise excessive power and dominance
over the entire legal system.
Question Two (50 marks)
Critically explain, with reference to relevant legal authorities and examples, how the
general legal principles on the assignment of criminal liability, and the constitutional
principles of prosecutorial independence and trial by jury, may, if properly applied,
help prevent miscarriages of justice in the Hong Kong Special Administrative Region.
Excellent answers mentioned and discussed the following issues:
Discuss what is meant by “miscarriage of justice”, e.g., a person is punished by
the judicial system for an offence that he or she has not committed; a recent
miscarriage of justice corrected by a higher court is HKSAR v Ma Ka Kin (2021).
Identify the general legal principles on the assignment of criminal liability and
explain how, if properly applied, they help to prevent miscarriages of justice in the
Hong Kong Special Administrative Region, e.g., (1) The presumption of
innocence, under which the accused bears no burden of proof that he or she is
innocent; rather, it is entirely on the prosecution to prove guilt – which helps to
guarantee that an innocent person does not have to prove his or her innocence,
something that could be exceedingly difficult to achieve; (2) Actus non facit reum
nisi mens sit rea: an act alone does not make a person criminally liable, the mind
must also be legally blameworthy – which helps to guarantee that the accused
cannot be convicted of an offence that he or she did not commit or intend to
commit; (3) Guilt must be proved beyond reasonable doubt: Kwan Ping Bong v
The Queen (1979): which increases the difficulty of wrongly convicting an
innocent person.
2
Identify and explain in the light of the question the constitutional principles of (1)
prosecutorial independence: Article 63 of the Basic Law and s.15(1) of the
Criminal Procedure Ordinance – which signifies that prosecutorial decisions
should be based on the public interest rather than irrelevant considerations or bad
faith; and (2) trial by jury: Article 86 of the Basic Law – there is no right to trial
by jury in Hong Kong, nor in the inferior courts – in serious cases which protects
the accused from arbitrary prosecutions and convictions that cannot be agreed to
by reasonable members of the community.
