An Examination of the Causes of the Criminal Jurisdiction Model of the Hong Kong SAR of China

Weitao Meng

doi:10.54097/c5nt3691

Authors

Weitao Meng

DOI:

https://doi.org/10.54097/c5nt3691

Keywords:

One Country, Two Systems, HKSAR, Criminal Jurisdiction, Judicial System, Legal System

Abstract

Since China resumed the exercise of sovereignty over Hong Kong, it has implemented the policy of One Country, Two Systems, conferring on the HKSAR a high degree of autonomy and independent judicial power, including that of final adjudication. The HKSAR enjoys criminal jurisdiction over local criminal cases, except in exceptional circumstances where criminal jurisdiction of the HKSAR is expressly excluded, and the corresponding criminal prosecution authorities carry out investigations, prosecutions and trials in accordance with the provisions of local law and the common law tradition. The HKSAR's model of criminal jurisdiction is generally characterised by a single-track operation, which is the normative manifestation of the single-track model. The formation and development of the HKSAR's normalised model of criminal jurisdiction is attributable to a number of factors, including both policy and legal considerations, and both practical considerations and historical traditions. On balance, the formation and development of the HKSAR's criminal jurisdiction model reflects the Central Authorities' respect for and trust in the HKSAR, and is consistent with the HKSAR's sui generis legal system and unique common law tradition. The formation of the HKSAR's criminal jurisdiction model has its own historical and practical considerations, reflecting the Central Authorities' respect for and trust in the HKSAR, as well as being compatible with the HKSAR's unique legal system and common law tradition. Facing up to and analysing its causes is conducive to the accurate implementation of the principle and policy of One Country, Two Systems, and is conducive to the effective governance of the HKSAR, thus contributing to the stability and progress of One Country, Two Systems.

Downloads

Download data is not yet available.

References

[1] Li Changdao, The Rule of Law in Hong Kong under One Country, Two Systems, in Politics and Law, No. 3, 1998, p. 7.

[2] Xiao Weiyun, The Hong Kong Basic Law and the Great Practice of - Two Systems in One Country, Haitian Publishing House, 1993 edition, p. 116.

[3] Zhuang Zhenzhen and Zhu Shihai, On the Nature of the Highly Autonomous Right of China's Special Administrative Regions, in Journal of the Central Academy of Socialism, No. 3, 2016, p. 60.

[4] Liu Mei, Changes in Hong Kong's Judicial System under One Country, Two Systems, in People's Procuratorate, No. 6,1997, p.58.

[5] Wang Shuwen, An Introduction to the Basic Law of the Hong Kong Special Administrative Region, China Democracy and Legal System Press,2006 edition,p.49.

[6] Zhuang Zhenzhen and Zhu Shihai, On the Nature of the Highly Autonomous Right of China's Special Administrative Regions, in Journal of the Central Academy of Socialism, No. 3, 2016, p. 60.

[7] Zhou Yezhong and Zhang Xiaoshuai, Re-examining the National People's Congress’ National Security Legislative Power over the Hong Kong Special Administrative Region, in Journal of Jianghan University (Social Science Edition), No. 4, 2016, p. 7.

[8] Li Xinjian, Hong Kong Basic Law and Criminal Jurisdiction Involving Hong Kong, in Journal of Law, No. 4, 1990, p. 13.

[9] Some scholars have pointed out that the connotation of common law generally includes three aspects: firstly, the early common law embodied the will of the Crown; secondly, the existence of case law as a counterpart to the enactment of the law; and thirdly, the rules of judicial application emphasising the adherence to precedent. Yang Xiaonan, Tradition and New Order: the Common Law of Hong Kong under One Country, Two Systems, in Journal of the National School of Administration, No. 4, 2017, pp. 50-51.

[10] Huang Mingtao, Common Law Tradition and the Implementation of Hong Kong Basic Law, in Law Review, No. 1, 2015, p. 39.

[11] Chen Hongyi, Hong Kong's Legal System and the Basic Law, Guangjiaojing Publishing House Ltd. 1986, p. 12.

[12] Li Honghai, Common Law Studies in China: Problems and Ideas, in Tsinghua Law, No. 4, 2007, p. 54.

[13] Su Yigong: Chinese-French-Western method- Chinese Laws and Customs in Hong Kong, Social Science Literature Publishing House, 2002 edition, p. 1.

[14] Huang Mingtao, The Common Law Tradition and the Implementation of the Hong Kong Basic Law, in Law Review, No. 1, 2015, p. 40.

[15] Yang Xiaonan, Tradition and New Order: Hong Kong Common Law under One Country, Two Systems, in Journal of the National School of Administration, No. 4, 2017, p. 51.

[16] Yang Xiaonan, Tradition and New Order: Hong Kong Common Law under One Country, Two Systems, in Journal of the National School of Administration, 2017, No. 4, pp. 51-52.

[17] Cao Xudong, Gaming, Breaking Free, and Public Opinion - Looking Back at the Zhuang Fengyuan Case from the Double Non-permanent Owner Fiasco, in Politics and Law No. 6, 2012, pp. 21-22.

[18] See Lo Pui Yin, The Judicial Construction of Hong Kong’s Basic Law: Courts, Politics and Society after 1997,Hong Kong University Press,2014,p.240-241.

[19] The First Historical Archives of China: An Atlas of Hong Kong's Historical Issues Archives, Sanlian Bookstore (Hong Kong) Limited, 1996, p. 59.

[20] See Peter Wesley-Smith, The Source of Hong Kong Law, Hong Kong University Press, 1994, p.207-210.

[21] Su Yigong, Chinese Law for Western Use - Traditional Chinese Laws and Customs in Hong Kong, Social Science Literature Publishing House, 2007, p. 102.

[22] Sun Chenggu, The Basic Law and the Political System of the Hong Kong Special Administrative Region, World Chinese Publishing Organisation (Hong Kong), 2005 edition, p. 124.

[23] Dong Likun, Hong Kong's Legal and Judicial System, Guangdong People's Publishing House (1992), pp. 32-36.

[24] Xu Chongde, Learning to Speak Constitutional Law, Law Press, 2000 edition, p. 388.

[25] Yao Guojian, On the Influence of Common Law on the Implementation of the Basic Law of Hong Kong - Taking the Difference in the Methods of Legal Interpretation between Land and Hong Kong as a Perspective, in Politics and Law Forum, No. 4, 2011, p. 63.

[26] Gu Minkang, Xu Yongkang and Lin Laifan, The Past, Present and Future of Hong Kong's Judicial Culture: A Comparison with the Mainland's Judicial Culture’, in Journal of the East China University of Political Science and Law, No. 6, 2001, p. 19.