RULE OF LAW IN HONG KONG

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 002244

SIPDIS

SIPDIS
NOFORN

DEPARTMENT FOR EAP, EAP/CM
NSC FOR DENNIS WILDER
USDOJ FOR CHRISTOPHER LEHMAN, OFFICE OF PROSECUTORIAL
DEVELOPMENT, TRAINING AND ASSISTANCE, AND KYLE LATIMER, OIA

E.O. 12958: DECL: 08/28/2032
TAGS: PGOV PREL PHUM PINR SOCI CH HK KJUS
SUBJECT: RULE OF LAW IN HONG KONG

REF: A. SECSTATE 110828

B. GUANGZHOU 0789

C. GUANGZHOU 0806

D. BEIJING 01103

Classified By: Acting E/P Chief Craig Reilly; Reasons 1.4 (b, d)


1. (C) Summary: Since its 1997 reversion to the PRC, Hong
Kong has retained its common law system and strong rule of
law under the "one country two systems" principle enshrined
in the Basic Law. All ordinances, rules of equity,
subordinate legislation, and customary law previously
enforced by the British have been maintained. With a few
exceptions specified in the Basic Law in the areas of defense
and foreign relations, the policies and national laws of the
mainland are not applicable in Hong Kong. Hong Kong courts
exercise independent judicial power and are not subject to a
superior court in the Mainland. Since 1997, the PRC National
People's Congress Standing Committee (NPCSC) has interpreted
the Basic Law on three occasions, each of which triggered
strong objections from the Hong Kong legal community, press,
and pro-democracy groups. Some legal contacts believe Hong
Kong now faces a "lawyer deficit," in part because more
foreign companies want Hong Kong legal counsel for their
mainland business. Hong Kong court cases are conducted in
English, Cantonese, and/or Mandarin, although English
predominates in the higher courts. (Note: This cable was
prepared by the visiting Embassy Beijing Resident Legal
Advisor, with assistance from Hong Kong E/P Section officers
and intern. A second cable will discuss Hong Kong's efforts
to assist and promote legal reform with mainland China.) End
Summary.

One Country, Two Systems
--------------


2. (U) At the heart of the Hong Kong legal system is the
principle of "one country, two systems." It was enshrined in
the Basic Law to guarantee the continuing application of Hong
Kong's common law system and rule of law after reversion to
the PRC in 1997. All ordinances, rules of equity,
subordinate legislation, and customary law previously
enforced by the British during Hong Kong's colonial era were
to be maintained. According to the Hong Kong Department of
Justice, the definition of "rule of law" is that "the power
of the Government and all of its servants shall be derived
from law as expressed in legislation and the judicial
decisions made by independent courts." Equality before the
law and the idea all citizens are subordinate to an unbiased,
independent judiciary is a fundamental component of the "two
systems" principle in Hong Kong.


3. (U) Under the Basic Law, the policies and national laws of
the mainland socialist system are not applicable in Hong
Kong, except for those relating to defense and foreign
affairs that are listed in Annex III of the Basic Law.
Correspondingly, the laws applicable in Hong Kong, except for
the Basic Law and the national laws listed in Annex III, are
not applicable in the mainland. Under the Basic Law, the
central government may extend to the Hong Kong Special
Administrative Region (HKSAR) international agreements to
which the PRC is a party, after consulting with the Hong Kong
Government (HKG). The HKG also can implement international
agreements to which China is not a party with the
authorization of the central government.


4. (U) Hong Kong courts exercise independent judicial power
and are not subject to a superior court in the Mainland.
Laws enacted by the Hong Kong Legislative Council (Legco) are
reported to the NPCSC for the record, a process which does
not affect the enforcement of those laws. In addition,
Article 84 of the Basic Law also provides that the courts of
the HKSAR may refer to the precedents of other common law
jurisdictions.

Judicial Autonomy
--------------


5. (U) Since 1997, the HKG has requested the NPCSC to
interpret the Basic Law on two occasions: first, in 1999
concerning a decision by the Hong Kong Court of Final Appeal
(CFA) involving the right to abode of children born in
mainland China of Hong Kong permanent resident parents; and
second, in 2005 to determine the length of term of the new
Chief Executive after his predecessor resigned before the end

HONG KONG 00002244 002 OF 002


of his elected term. In one other case concerning possible
implementation of universal suffrage for the 2007 Chief
Executive and 2008 Legco elections, the NPCSC in 2004
interpreted the Basic Law on its own initiative.


6. (C) All three NPCSC interventions triggered strong
objections from the Hong Kong legal community, the
independent press, and pro-democracy groups. CFA Justice
Kemal Bokhary told us recently that he and the other four CFA
justices seriously considered resignation after the 1999
interpretation, when the NPCSC effectively overruled the
CFA's determination, but they decided not to do so because
"you can only do that once." Also, the justices feared they
would be replaced by less independent or competent jurists.
Justice Bokhary believes that under current Secretary for
Justice Wong Yan-lung the HKG is not likely to submit another
CFA case to the NPCSC for interpretation.


7. (C) Virtually all our contacts agreed that the rule of law
will continue to thrive in Hong Kong. Hong Kong University
Law School Dean Johannes Chan said the CFA had "regained its
vigor" as the guardian of fundamental rights. He believed
the court's current members are well-balanced between liberal
and conservative, with Chief Justice Andrew Li often the
swing vote. Former Secretary for Justice and now Vice
Chairman of the Hong Kong-PRC Basic Law Committee Elsie Leung
stated the rule of law system will continue to develop under
the system of judicial review mandated by the Basic Law.
Justice Bokhary believes that the necessary elements of the
legal system -- academia, the bar, and the judiciary, along
with legal advisors to the government - are in place for rule
of law to survive, although he had some concern about the
quality of prosecutors.

Profile of the Legal Profession
--------------


8. (U) The legal profession in Hong Kong is divided into two
distinct branches, barristers and solicitors. Barristers
have unlimited rights of audience in all courts and
specialize in litigation and giving oral submissions in court
hearings on behalf of their clients. Solicitors act as legal
advisors to their clients but have limited rights of audience
before the court and can only represent clients in
lower-level court hearings. If cases are heard at the HighCourt or the Court of Final Appeals, solicitors obtin
information from clients to prepare instructins for
barristers, who then represent the client at the upper-level
courts. The Bar Council of the Hong Kong Bar Associaton and
the Law Society of Hong Kong are the govening bodies for
barristers and solicitors, respetively.


9. (C) There are currently 705 law firm in Hong Kong,
including 53 foreign firms that emloy 322 foreign lawyers;
another 518 foreign lawers work in local law firms. Hong
Kong has threelaw schools: University of Hog Kong, Chinese
University of Hong Kong, and City University of Hong Kong.
Most law graduates become corporate lawyers, with relatively
few interested in development and improvement of the law.
Justice Bokhary believes there is a "lawyer deficit" in Hong
Kong, especially in the number of qualified prosecutors.
President Lester Huang of the Law Society of Hong Kong
agreed, explained that Hong Kong legal resources are spread
thin because more foreign companies wanting to do business in
China are only willing to use Hong Kong attorneys.

Trilingual Courts
--------------


10. (U) Although both English and Chinese are official
languages in Hong Kong, the language used in court differs by
the level of the court. In criminal matters in magistrates
court, Cantonese is the primary language, although English
and/or Mandarin can be used. In higher-level courts, where
many expatriate judges continue to serve, English is the
dominant language. Law Society President Huang suggested
that the increasing use of Cantonese may eventually create a
conflict in the common law system, which heavily depends on
English-language precedents from other common-law countries.
On the other hand, many local lawyers speak both languages
and Chinese-language pleadings often contain English-language
passages from supporting cases.
Cunningham