Characteristics of Common Law

1.Rule of LawThe rule of law, upheld by an independent judiciary, is one of Hong Kongs greatest strengths. This refers to some of the fundamental principles of law that govern the way in which power is exercised in Hong Kong. The rule of law has several different meanings and corollaries. Its principal meaning 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.

At the heart of Hong Kong's system of government lies the principle that no one, including the Chief Executive, can do an act which would otherwise constitute a legal wrong or affect a person's liberty unless he can point to a legal justification for that action. If he cannot do so, the affected person can resort to a court which may rule that the act is invalid and of no legal effect. Compensation may be ordered in the affected person's favour. This aspect of the rule of law is referred to as the principle of legality. Everyone in Hong Kong is equal before the law. Everyone has access to the justice system.

2. The right of silence and presumption of innocence:At Common Law, such right is limited. Some statutory offenses now require the defendant to perform certain acts or else he can be found guilty for not doing so. That means that an accused person has the right to be presumed innocent until proven guilty according to law. Although innocence is presumed at Common Law, the onus of proof is on the defendant in certain offenses as enacted by statutes.

3. Already understood of Statutes:In the view of the existing case law and custom, the Statutes may leave a number of things unsaid. They may seems as already understood.

This happened in the area of the Criminal Law as follows:

Criminal Law:

  1. A man is innocent until proven guilty. (C.C. sec. 11(d)). (France takes the opposite view).
  2. A man's home is his castle. (Entry can only be obtained against the will of the owner by due process of law).
  3. A man cannot be convicted twice for the same offence - once he has stood trial. This applies when the offence is under the same statute. (C.C. sec. 12 & Charter s. 11(h))
  4. A person under twelve years of age cannot be prosecuted. (C.C. sec. 13).
  5. A man can only be charged and convicted with a crime known to law. (sec. 9 of the C.C. - exception is the charge of contempt of court).
  6. A man can only be punished after conviction, and then only within the limits authorized by law. (C.C. sec. 6).
  7. A man is entitled to be tried by his peers. In Canadian law, this is only true for certain indictable offences for which the C.C. so provides.
  8. The accused must be given the benefit of a reasonable doubt. Therefore, circumstantial evidence must be overwhelming.
  9. The Crown must prove its case beyond a reasonable doubt.
  10. No charge can be laid against a person for a common law offence - except for contempt of court. See sec. 9 of the C.C.
  11. A person can only be arrested by due authority of the law. (C.C.sec. 494-495).
  12. Ignorance of the law is not an excuse (C.C. sec. 19). However, in some cases there may be exceptions - see main text.
  13. The accused is entitled to make a full answer in defence of a charge. In other words, a person cannot be tried while under the influence of alcohol or drugs and an insane person cannot be tried - see main text
  14. The accused is entitled to have counsel without delay and to be informed of the right. (Charter of Rights and Freedoms - sec. 10b).
  15. The accused cannot be compelled to incriminate him or her. (Charter sec. 11(c)).
  16. Generally speaking the accused's character or general reputation is not at stake. Exceptions are if such information is essential to the crime such as with Clifford Olson and Paul Bernardo.
  17. With the exception of a few crimes, neither the husband nor wife is compellable witnesses for the prosecution. (see Canada Evidence Act, sec. 4(2), 4(4) and 4(5) for exceptions.)18. Corroboration is required by law in certain cases.
  18. In most crimes, guilty mind (mens rea) has to be established.
  19. In some cases compulsion will be a defence (C.C. sec. 17 - see main text).
  20. In many cases where stark necessity compels a person to commit an offence, that may be a defence.
  21. Insanity is a defence if pleaded at the time of the trial (C.C. sec. 16 - see main text).
  22. People who become insane before they are brought to trial cannot be tried (see 14 above).
  23. People who become insane during the term of imprisonment must be placed in an institution until they recover.
  24. Provocation may form a defence - this does not include impulsive insanity. Provocation must be instantaneous - not over a period of time (see main text).

4. Judicial Independence:Judicial immunity is designed to safeguard judicial independence on the assumption that judges are appointed from among honest, fair, and impartial members of the society.

5. Jury System:At Common Law, the power of jurors to decide on findings of fact is so great that jurors can circumvent the function of the trial judge on points of law. The success of the jury system depends very much on the willingness of the citizens to participate in it, as well as on the populations general educational level and on the disposition, favorable or not, toward the use of juries.

6. Financial Resources for Legal Services:People in the Hong Kong Special Administrative Region have the right to confidential legal advice, choice of lawyers for timely protection of their legitimate rights and interests, representation in the courts, and judicial remedies. The rights to legal advice can only be guaranteed by widespread legal aid for all types of legal advice.

7. Doctrine of the supremacy of the law:Supremacy of the law meant that not even the king was above the law; today it means that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.

8. Individual and Legal Rights:Hong Kong residents shall have freedom of speech, of the press, and of publication; freedom of association, of assembly, of procession, and of demonstration; and the right and freedom to form and join trade unions and to strike.

Bibliography:

  • City University of Hong Kon, School of Law http://www.unidroit.org/english/publications/review/articles/1999-3.htm