Hong Kong

• General contract and tort cases (between HKD75,000 to HKD3 million);
• Real property cases (including tenancy cases) where the annual rate or rateable value or the annual value of which does not exceed HKD320,000;
• Matrimonial and family cases.

The High Court is made up of the Court of First Instance and the Court of Appeal. It has both appellate and original jurisdiction.

• The Court of First Instance has unlimited jurisdiction over all civil claims as follows: (i) Money claims for HKD3 million or above; and (ii) All other claims falling outside the District Court’s jurisdiction (including judicial review, winding up and bankruptcy and appeals from the Labour Tribunal and the Small Claims Tribunal (on a point of law)).
• The Court of Appeal hears appeals from the District Court and the Court of First Instance, and certain statutory bodies (i.e. Lands Tribunal).

The Small Claims Tribunal hears claims up to HKD75,000. No legal representation is allowed at the Small Claims Tribunal.
The Lands Tribunal hears:

• Applications by landlords for possession of premises.
• Disputes about building management.
• Applications for the determination of compensations caused by land resumption and payable by the Government because of public developments pursuant to the relevant ordinances.
• Appeals against the assessment of rateable value / government rent or market value of property under the Housing Ordinance (Cap. 283).
• Applications made by majority owners of a land for the sale of the land for redevelopment purposes under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap. 545).

• Unlimited rights of audience in all courts
• Instructions from solicitors / Director of Legal Aid / Department of Justice
• Overseas barrister

Solicitors

• Wide range of services
• Limited rights of audience in courts
• Solicitor Advocate
• Registered foreign lawyers

• as a disbursement in the solicitors’ bill
• must be agreed in advance for court attendance

Solicitors

• Litigation – time costs basis
• Non-contentious matters – agreed fee/time costs basis
• written fee agreement (retainer fee):-
  • the scope of service to be provided;
  • the costs to be charged; and
  • client’s signature to confirm knowledge of the retainer
• Contingency fee arrangement – illegal (aka champerty and maintenance)

• Contract claims (not under seal) – 6 years from the date of breach.
• Contract under seal claims – 12 years from the date of breach.
• Personal injury claims – generally 3 years from the date of the accident, or the date of knowledge of the injury by the Plaintiff, whichever is the later.
• Claims under Employee’s Compensation Ordinance – 2 years from the date of occurrence of the accident (injury occurred during employment)
• Fatal accident claims – 3 years from the date of death or the date of knowledge of the death by the deceased’s dependent (whichever is the latter).
• Actions to recover possession of land – 12 years from the date on which the right of action accrued to the Plaintiff or to a person through whom the Plaintiff claims.
• Other tort claims – 6 years.

Extension:

• court discretion; and
• agreed among parties.

• Automatic discovery
• Specific discovery
• Inspection

Other form of discovery
Interrogatories – in the form of question / answer.

• Writ of Summons
• Originating summons
• Originating motion
• Petition

• libel, slander;
• malicious prosecution;
• false imprisonment;
• seduction;
• allegation of fraud; or
• an Admiralty action in rem.

• Injunctions:
  • Mareva injunctions (freezing injunction)
  • Anton Piller orders
  • Quia timet injunctions
  • Interim payment – where a Plaintiff can show that if the case proceeds to trial, he or she will recover a substantial award of damages from the Defendant.
• Interim payment
• Appointment of receivers – manage or protect property pending the trial.
• Appointment of provisional liquidators
• Free-standing interim relief

• Evidence from Witness (written and oral)
• Documentary evidence (privileged documents excluded)
• Expert opinions

When evaluating the evidence, factors taken into consideration are:

• Authenticity of the documents (and whether they are admissible under statue)
• Consistency and logic of all the evidence
• Character and credibility of the witness
• For expert witnesses – further technical requirements

• the number of expert witnesses from each side.
• the timeline to file and exchange expert reports.

• Costs can be awarded during any stage of the claim.
• In general, successful party in most cases will be awarded the costs.
• In some cases, the court can award proportional costs to the unsuccessful party (ie: it can be partial success of a party’s list of claims or counterclaims).
• Security for costs.

• Progress of each party
• Complexity of the case
• Volume of evidence
• Number of witnesses (and/or experts) to be called

• Charging order – a charge on an interest in land or over securities.
• Garnishee order
• Writ of execution
• Writ of possession.
• Appointing a receiver.
• Winding-up petition (company) or bankruptcy proceedings (individual).
• Examination – which involves an oral cross-examination of the judgment debtor (or an officer is a corporation) as to the assets available to satisfy the judgment.

• points of law;
• points of fact; or
• challenging the discretion of respective courts.

• Contrary to public policy;
• Not bona fide; and
• Legal issues – regardless of the choice of law, Hong Kong law must apply regardless of a choice of law clause when it comes to certain areas of law (i.e. sale of goods (consumer protection), employment, real property and insolvency).

If there is no governing law provision in the contract, the court will generally look for any indication of the parties’ intentions, including but not limited to the following considerations:

• The law specified in any arbitration clause;
• The place of performance of the contract;
• The governing law clause of related contracts;
• Illegality; and
• The place of the subject matter of the contract.

• Foreign Judgments (Reciprocal Enforcement) Ordinance (Chapter 319)
• Common law regime – enforceable at common law, there are a number of requirements, such as:
  • the foreign judgment must be final and conclusive on the merits of the claim;
  • the foreign judgment must be for a debt or definite sum of money;
  • the Defendant must have submitted to the jurisdiction of the foreign court; and
  • the foreign judgment was not contrary to Hong Kong rules of public policy or notions of natural justice.
• Mainland Judgments (Reciprocal Enforcement) Ordinance (Chapter 597) – this is for the enforcement of Chinese judgments from the PRC in Hong Kong. A judgment creditor under a PRC judgment that satisfies the following statutory requirements can apply to the Court of First Instance to register the judgments, :
  • the judgment relates to a commercial contract and was given after 1 August 2008;
  • the parties to the commercial contract had a written agreement made after 1 August 2008 specifying that the courts in the PRC have exclusive jurisdiction over the dispute;
  • the judgment was given by the Supreme People’s Court, a higher or intermediate people’s court or certain recognised primary people’s courts;
  • the judgment is enforceable in the PRC;
  • the judgment is final and conclusive; and
  • the judgment is for a definite sum of money (not being a sum payable in respect of taxes or similar charges or in respect of a fine or other penalty).

• Mandatory registration “Leavehomesafe” mobile app when entering courts
• Body temperature scanning at entrance.
• Security guards to control elevators (if enough staff).
• Buttons are covered in plastic film which they replace quite regularly.
• Perspex screens are placed up in front of the bar table and the judges table.
• Remote hearings.