THE HIGH COURT

The High Court is made up of the Court of Appeal and the Court of First Instance. It has both appellate and original jurisdiction, i.e. it can both hear appeals sent to it and try cases first taken to it.

The right of appeal is an important part of Hong Kong's legal system, for it allows a higher court to review the judgment of a lower court. The appeal system seeks to ensure that any failures or mistakes claimed to have been made in or in relation to a court hearing, or indeed during an investigation, can be corrected by way of appeal to a higher court.

Appeal Structure of the High Court, District Court and Lands Tribunal

Appeal Structure of Magistrates' Courts and Tribunals

* The Court of First Instance may reserve the appeal, or any point in the appeal for the consideration of the Court of Appeal, or may direct that the appeal, or a point in the appeal, is to be argued before the Court of Appeal.

COURT OF APPEAL

The Court of Appeal hears appeals on criminal and civil matters from the Court of First Instance, the District Court, the Lands Tribunal and various Tribunals and statutory bodies by virtue of the Ordinance.

1) Criminal Appeals

When an accused in a criminal case is convicted and not satisfied with a decision made by the Court of First Instance or the District Court, he or she may lodge an application for leave to appeal with the Court of Appeal within 28 days from the day of conviction/sentence. If he or she does not lodge an application within time, he or she may apply to the Court of Appeal for leave to appeal out of time.

An accused may appeal against his or her conviction, sentence, or against both conviction and sentence by filing a Notice of Appeal (Form XI) with the Clerk of Court within the time limit. This Notice sets out the grounds of appeal. Form XI is available from the Clerk of Court's Office in the High Court Building or the institution where sentence is being served. No filing fee is required.

The Clerk of Court will send an initial appeal bundle to all parties concerned when it is ready. Further papers will be prepared and sent to the parties concerned on request and upon approval by the directions judge or Registrar of Appeals.

An appeal judge may after hearing refuse leave to appeal or conduct "for mention" hearings to ensure the case is ready. When it is ready, a date will be fixed for hearing the appeal.

After the hearing, the Court of Appeal, comprising two or three Justices of Appeal, may dismiss or allow an appeal orally and / or reserve written judgment to be handed down or delivered on a date to be fixed.

If an appeal relating to sentence succeeds the term of imprisonment may be reduced, but if not successful, the Court of Appeal may increase the sentence or order loss of time already served.

2) Civil Appeals

Generally, an appeal lies as of right from a decision on a final matter from a Court of First Instance Judge to the Court of Appeal. However, no appeal against the following decisions in a civil case can be made:

(a) A decision of a Judge in the District Court, unless leave to appeal has been granted;

(b) A decision of a Judge of the Court of First Instance in an interlocutory matter, unless leave to appeal has been granted;

(c) An appeal against the decision of a Court of First Instance Judge solely on the question of costs, unless leave to appeal has been granted;

(d) A decision of the Lands Tribunal, unless on a point of law and leave to appeal has been granted

An application for leave to appeal should be made to the judge or master of the respective court who gave that decision.

With regard to (a), an application for leave should be made within 14 days from the date of an interlocutory decision, or within 28 days for non-interlocutory ones.

With regard to (b), (c) and (d), an application for leave should be made within 14 days of the decision.

If the Judge refuses to grant leave, the party may further apply to the Court of Appeal for leave to appeal within 14 days from the date of such refusal. The Court of Appeal may give leave on such terms as to costs, security, etc. as it thinks fit. The decision of the Court of Appeal on whether to grant or refuse leave is final and not appealable. After leave is granted, the appellant should serve a notice of appeal on the respondent and the court below within 7 days.

Where leave to appeal is not required, the appellant should serve a notice of appeal on the respondent and the court below within 28 days of the decision appealed against.

After service of the notice of appeal, the appellant should:

• Within 7 days lodge with the Registrar a sealed copy of the judgment or order appealed against, a copy of the written reasons for judgment and two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid, and the other endorsed with a date of service of the notice;
• Notice of setting down must be given to all parties on whom the notice of appeal was served within 4 days after an appeal has been set down; and
• make an application to fix a date for the hearing of an appeal in the Clerk of Court's Office. Application forms are available at the Clerk of Court's Office.

Once listing directions have been obtained from the Registrar of Civil Appeals, the listing officer will fix a date in accordance with those directions. Appeals are heard by the Court of Appeal, comprising normally three, sometimes two, Justices of Appeal.

Either party to an appeal can act in person. The Registrar may hold a directions hearing if he considers it necessary. If a party is a limited company, it must engage a solicitor to act on its behalf unless special permission is obtained from the Court for the company to act by its director.

Language

Cases can be conducted in one of the two official languages, Chinese or English. The language used in the appeal is usually the same as that used in the trial hearing unless the appellant applies to the Court of Appeal to use the other language. The Court may allow or refuse the application and its decision is final.

Further Appeal

If the party is not satisfied with the decision of the Court of Appeal, he or she may lodge an application for leave to appeal to the Court of Final Appeal. For details, please refer to the "Court of Final Appeal" booklet.

COURT OF FIRST INSTANCE

As already noted, the Court of First Instance has both appellate and original jurisdiction and this extends to both criminal and civil matters.

1) Appellate Jurisdiction

Magistrates' Courts Appeals

The Court of First Instance functions as an appeal court for criminal cases heard in the Magistrates' Courts.

An accused who is not satisfied with the decision of the Magistrate may lodge an appeal to the Court of First Instance within 14 days after the decision of the Magistrate.

A Notice of Appeal should be filed with the First Clerk of the Magistrates' Courts where the trial was conducted.

• Form No. 101: Notice of Appeal against conviction
• Form No. 102: Notice of Appeal against sentence
• Form No. 103: Notice of Appeal out of time

These forms are available from the Magistrates' Courts and the Clerk of Court's Office, as well as from the institution where the accused is serving sentence. No filing fee is required.

Upon receipt of the appeal bundle from the Magistrates' Courts, the Clerk of Court fixes a date for the hearing of the appeal. A notice of hearing and a copy of the appeal bundle will be sent to the parties concerned.

Tribunal Appeals

The Court of First Instance functions as an appeal court for cases heard in the Labour Tribunal, the Small Claims Tribunal, the Obscene Articles Tribunal and the Minor Employment Claims Adjudication Board.

The party concerned should file an Application for Leave to Appeal with the Clerk of Court's Office within the time limit specified in the respective Ordinances. The form is available from the Resource Centre for Unrepresented Litigants situates at the High Court Building, Clerk of Court's Office or from the Registries of the respective Tribunals/Board.

The hearing will be fixed before a Judge of the Court of First Instance. If leave is granted, the parties will be informed in writing. The party will then need to file a Notice of Originating Motion with a prescribed fee to be paid. They will be invited to the Clerk of Court's Office to fix a date for hearing the appeal. Leave will be granted only for cases involving points of law.

The refusal of a Judge of the Court of First Instance to grant leave to appeal is final.

A party who fails to lodge an appeal within the time limit may apply to the Registrar of the High Court for leave to appeal out of time. The decision of the Registrar is final.

Appeal from Decision of Master

There is also a right of appeal from the decision of the Master to the Judge of the Court of First Instance. However, no further evidence (other than evidence as to matters which have occurred after the date on which the decision was given or made) may be received on the hearing of that appeal except on special grounds.

2) Original Jurisdiction

i) Criminal Jurisdiction

The Court of First Instance tries the most serious criminal offences, such as murder, manslaughter, rape, armed robbery, or trafficking in large quantities of dangerous drugs and complex commercial frauds. Most of such cases are transferred from the Magistrates' Courts after the committal proceedings.

Cases are tried, normally in open court, by a Judge of the Court of First Instance, sitting with a jury of seven, or, when a Judge so orders, nine. The prosecution is conducted by the Department of Justice of the Hong Kong Special Administrative Region.

The Clerk of Court's Office will list the case for date fixing before the Listing Judge and will inform the parties in writing of the date of appearing. At the date for fixing a hearing, the Listing Judge will give the dates of both the pre-trial review and the trial.

An accused who is acting in person should seek legal advice immediately and may seek legal assistance from the Legal Aid Department. If he or she chooses not to engage a lawyer, the case for the defence should be very carefully prepared well before trial. If it is intended to summon witnesses, an Information and Request for a Summons to a Witness together with a Summons to a Witness should be completed and filed with the Clerk of Court. The Court will arrange for the bailiff to serve the Summons.

A Pre-trial review will be held usually 6 weeks before trial. The trial Judge will at such meeting give necessary directions to secure proper and efficient trial of the case.

Flowchart for criminal procedure

Language

Cases can be conducted in either Chinese or English. If a party chooses Chinese, he or she should make this request to the Listing Judge at the date fixing session. If approval is granted, a bilingual Judge will be arranged to conduct the trial. The Listing Judge may allow or refuse the request.

Appeal

If the accused is not satisfied with the decision of the Court, he can appeal to the Court of Appeal. Please see page 28 and 29.

ii) Civil Jurisdiction

The Court of First Instance has unlimited jurisdiction over all civil matters. Common types of civil proceedings in the Court of First Instance include:

• admiralty
• bankruptcy
• breach of contract
• tort
• company winding-up
• construction and arbitration
• custody and ancillary relief in matrimonial proceedings
• hire-purchase
• injunction
• intellectual property
• judicial review
• mortgage
• personal injury
• probate and administration

Note that if a claim is for an amount slightly in excess of $1 million, the excess can be abandoned to bring the claim within the jurisdiction of the District Court, since costs there are generally lower than those of the Court of First Instance.

How to Start a Civil Action in the Court of First Instance?

In civil proceedings, one party - the plaintiff - starts a civil action against another party - the defendant - in one of three ways. As plaintiff, you may:

• engage a lawyer
• seek the help of the Legal Aid Department
• start the action yourself

Certain types of individual, for example, infants, mentally disabled persons and the estate of a deceased person, can only commence an action by a representative. A limited company must engage a solicitor to act on its behalf in the Court of First Instance whether as plaintiff or defendant unless special permission is obtained from the Court for it to be represented by a director.

Mode of starting an action

As plaintiff, you can commence a civil action in the Court of First Instance in one of the following modes:

• Writ of summons
• Originating summons

Forms for all these modes can be found in Appendix A of the Rules of the High Court, Chapter 4 of the Laws of Hong Kong.

Since the most common mode for commencing an action is the Writ of Summons, it is outlined below.

Writ of Summons

You can obtain a Writ of Summons (Form No. 1) and the accompanying acknowledgement of service (Form No. 14) from the High Court Registry. A Writ of Summons must always be used to commence an action based on contract, tort, fraud, damages for personal injuries or death, damages to property arising out of a breach of duty, and generally for all actions likely to involve a substantial dispute of facts.

If the only claim that you are making is for payment of money, a Form 16 (for a liquidated claim, e.g. a debt) or Form 16C (for an unliquidated claim, e.g. damages for breach of contract or personal injuries) for admission of your claim should accompany your writ.

Filing of Writ of Summons

As plaintiff, you will set out on Form No. 1 in Chinese or English a statement of claim, i.e. a concise statement of your claim together with the facts you rely on and the relief and remedy you claim. You have to verify the statement of claim with a statement of truth in accordance with Order 41A of the Rules of the High Court.

Pay a filing fee at the Accounts Office of the High Court upon filing the Writ. After you have paid this fee, return the completed forms to the Registry. One copy of the form will be returned to you for reference.

You must serve the writ, acknowledgement of service and Form 16 or 16C (if applicable) on the defendant. This can be done by personal service, registered mail, or insertion through the letter box (or, in the case of a corporation, on the registered address). Make sure the defendant's address is accurate. In an action for recovery of possession of land / property, you must also post up a copy of the writ at the entrance of the premises in question (You may see the "Bailiff's Office" booklet for details).

Filing of Acknowledgement of Service by the Defendant

When the defendant is served with the writ (Form No. 1) and the acknowledgement of service (Form No. 14), he or she must fill in Form No. 14 to indicate if he or she wishes to defend the action and file it with the Registry within 14 days after service of the Writ (including the day of service).

For the purpose of calculating the period of 14 days for filing acknowledgement of service by an individual defendant, a Writ served on the defendant personally is treated as having been served on the day it was delivered to him and a Writ served by post or by insertion through the defendant's letter box is treated as having been served on the seventh day after the date of posting or insertion.

Filing and serving of defence by the Defendant

Any defence must be filed with the court and served on you within 28 days after the time limit for acknowledgement of service expires. The defence must explain why the defendant is disputing your claim and may include a counterclaim against you.

The defence must be verified by a statement of truth in accordance with Order 41A of the Rules of the High Court.

What happens if the defendant does not file acknowledgement of service or a defence?

If a defendant does not file Form No. 14 or a defence within the time allowed, you can apply to the Court for judgment. In such a case, a full trial is not required. You may enter judgment for the amount claimed and costs, if the claim is for debt or for liquidated damages, i.e. where the amount of the claim is fixed and ascertainable, for example, action on a cheque.

Interlocutory judgment on liability may be entered instead if you are claiming for unliquidated damages, for example, for loss of profits or damages for injury to person or property. In this case you will have to ask a master or a judge to assess the amount of damages you are entitled to.

Under Order 13A of the Rules of High Court, if you are only claiming for the payment of money, the defendant may make an admission and/or propose terms of payment by filing in Court a Form 16 or Form 16C as may be appropriate and serve a copy of the same on you. You may file a request for judgment or reply (see Form 16B, 16D and 16E) to indicate if you accept the offer and the terms of payment as proposed by the defendant. If you accept the offer but do not agree to the terms of payment, you may request a master to determine the terms of payment.

However, if you do not file a request for judgment or reply within 14 days after a copy of the admission form served on you, the claim is stayed until you file the request or reply.

What happens if the defendant files a defence/counterclaim?

As plaintiff, you may file with the court and serve on the defendant a reply to any defence filed by him within 28 days after service on you of the defence, and set out additional facts in answer to it.

If the defendant files a counterclaim, you will have to file and serve a defence to it within 28 days after the service on you of the counterclaim if you wish to dispute it. The defendant can enter judgment in default of defence to the counterclaim if you fail to do so within time. As far as the counterclaim is concerned, you have become a defendant.

There are no prescribed forms for a reply or defence to a counterclaim, but you should combine the reply and any defence to the counterclaim in one single document. The document has to be verified by a statement of truth in accordance with Order 41A of the Rules of the High Court.

Discovery of Documents

The pleadings stage will then be complete. Next comes "discovery", when each side must disclose to the other the documents he possesses that relate to the case. After disclosing the documents in the form of a list (Forms No. 26 and 27), both sides must allow the other side to inspect the actual documents.

Timetabling Questionnaire

Each party shall file and serve a timetabling questionnaire within 28 days after the pleadings stage is complete. You should try to agree with the other party (parties) on what directions to seek to prepare a case for trial.

Case Management Summons

As plaintiff, you must, within 14 days after receiving the timetabling questionnaire from the other party (parties) or within 14 days upon expiry of the period for filing and serving a timetabling questionnaire, issue a case management summons for the court to give directions relating to the management of the case.

The court will fix a timetable for the steps to be taken and may fix a milestone date for a case management conference, pre-trial review and/or the trial. You should comply with the directions as you may not be able to get extensions of time without sufficient grounds. In addition, you should attend court on the milestone dates, otherwise your claim will be struck out.

Listing for Trial

After the Court has given directions for setting down, you should file with the Court an application to set a case down for trial and a notification of setting down. In so doing, you have to pay a prescribed fee. Besides, a bundle of documents has to be lodged.

For cases in the Fixture List both parties should attend before the Listing Officer on the date scheduled for date fixing. The Listing Officer will then list the case for trial in accordance with the directions given by the Listing Master. After date fixing, the pre-trial procedure is then complete and parties should bear the trial date in mind and wait for trial.

For cases set down in the Running List, they will be placed initially on the Pending List and then Warned List. Once a case has been set down the title of the action and its action number will appear at the bottom of the Pending List if it is expected to be tried during the next succeeding month. The cases will be tried by judges who are found available to try them one after another generally in accordance with the order set out in the Pending List. Parties have to check the Pending List on the last day of each month to see if their case has been listed on it. Once the case is listed on the Pending List, they have to check the Warned List every Wednesday. This is because every Wednesday a number of cases from the Pending List will be warned that they will likely to be called and tried in the next week and they are put in a separate list called the Warned List. Once a case is listed on the Warned List, parties are required to check the Warned List every day whether their case is fixed to be tried the next day.

The Pending List is posted on the Notice Board in the reception area of the Clerk of Court's Office on the Ground Floor. The Warned List is posted on the Notice Board outside the Clerk of Court's Office. The Warned List is also accessible at the Judiciary Website. At 2:30 p.m. in every afternoon the Listing Clerk will mark on the Warned List those cases that will be tried the next day specifying the venue and date of trial. It is the responsibility of the parties to ensure that they will attend the trial on time.

If either party intends to call witnesses, their attendance at the trial must be secured well in advance. It may be necessary to issue a writ of subpoena, i.e. a witness summons. (See Form No. 28 or 29 in Appendix A of the Rules of the High Court, Chapter 4 of the Laws of Hong Kong.) The appropriate office for issuing such a writ is the Registry of the High Court. Every writ of subpoena should be accompanied by a deposit to cover the witness's reasonable expenses.

Trial Hearing

Both parties should attend court punctually on the trial date, bringing relevant original documents and photocopies for the Judge and for the other party if necessary. Your witnesses should come with you. The ground floor lobby notice board will show which court is hearing your case.

At the trial, the Court will hear the evidence of witnesses and the submissions of the parties. The Court may adjourn the case to another date if further information and/or evidence are needed. The Court may deliver judgment at the end of the trial or deliver/hand down the judgment at a later date.

If parties are willing to settle, the Court will make the settlement an order of the Court. If you and the other party settle the case amicably before the trial, you may file a notice to discontinue the case, or file a consent order setting out your agreement. You may also apply to the Court at the trial to have the terms of settlement made an order of the Court.

Legal Representation

The accused, parties and appellants in both criminal and civil proceedings can act in person or engage a lawyer to act on their behalf. If they can afford to do so, they can employ a legal practitioner in private practice, if not, they can apply for legal aid. For details, please refer to the free pamphlet "How to Apply for Legal Aid in Civil Cases" available at all courts, the Legal Aid Department and Public Enquiry Service Centres of District Offices. A party in a civil action may apply direct to the Director of Legal Aid at 24/F, Queensway Government Offices, 66 Queensway, Hong Kong (Tel: 2537 7677). An accused in custody who wishes to apply for legal aid should approach the Welfare Officer in the custodial institution concerned.

An accused or party who chooses to act in person should prepare the case very carefully before the hearing.

Execution of Judgment

If a party has obtained a judgment but the judgment debtor fails to obey the order, the judgment creditor may apply to the Court to enforce the judgment. The bailiff will levy execution on the property of the defendant in order to recover judgment. You may contact the High Court Registry for information if the bailiff's service is required. For details, please refer to the "Bailiff's Office" booklet available from the High Court Registry or the Bailiff's Office.

Performance Pledge

Waiting time in the Court of Appeal for a hearing date:

• Criminal cases: 50 days from setting down of an appeal
• Civil cases: 90 days from application to fix date

Waiting time in the Court of First Instance for a hearing date:

• Criminal fixture list: 120 days from filing of indictment
• Criminal running list: 90 days from setting down
• Civil fixture list: 180 days from application to fix date
• Civil running list: 90 days from setting down
• Appeals from Magistrates' Courts: 90 days from lodging of Notice of Appeal

Please note that the above waiting times are targets that the Judiciary strives to achieve, and may fluctuate according to the year's particular circumstances.

• Wherever possible, the Judiciary will reply at once to correspondence from members of the public. In any case, we will give you an interim reply within 10 days and a full response within 30 days of receiving a letter.
• We welcome all comments and suggestions for improving our services. Please send them to the Judiciary Administrator at the High Court, 38 Queensway, Hong Kong.

Business Hours

• The Registry / Offices will be closed when tropical cyclone signal No. 8 or above or a black rainstorm warning signal is issued.
• Hearings will be resumed and the Registry / Offices will be opened as usual in the morning if such signal is lowered or cancelled at or before 6:00 a.m. on Monday to Friday and Saturday.
• Hearings will be resumed at 2:30 p.m. if such signal is lowered or cancelled between 6:00 a.m. and 11:00 a.m. or at 11:00 a.m. on Monday to Friday. Registry / Offices will be re-opened at the usual time in the afternoon.
• Hearings will remain adjourned for the whole day and be resumed at 9:30 a.m. the next day (including Saturday) which is not a public holiday if such signal is lowered or cancelled after 11:00 a.m. on Monday to Friday or after 6:00 a.m. on a Saturday.
• Registry / Offices may be re-opened in the afternoon as soon as practicable subject to the circumstances prevailing at the time if such signal is lowered or cancelled after 11:00 a.m. on Monday to Friday. However, they will remain closed if such signal is lowered or cancelled 2 hours or less before the normal closing hours on Monday to Friday.
• The registry / offices will remain closed if such signal is lowered or cancelled after 6:00 a.m. on Saturday.
• Please note the announcements on radio and television by the Judiciary about the resumption of hearings and re-opening time of the Registry / Offices or you may view the announcement (upon issue) at the Government's Press Release webpage at http://www.info.gov.hk/gia/general/today.htm. You may also call the Court Registry at 25232212 to make enquiries.

No Legal Advice

In order to maintain the impartial role of the Judiciary, our staff will not provide any legal advice or offer any comment on the conduct or merits of specific court cases and proceedings. For general information on court procedures, you may approach the Resource Centre for Unrepresented Litigants at Room LG105 or visit its website at: http://rcul.judiciary.gov.hk

Please note that you should consult a legal practitioner or approach free legal advisory bodies for assistance if you require legal advice or assistance.

Before You Consider Legal Proceedings

Legal proceedings should always be thought of as a last resort. It is advisable to make every effort to settle a dispute by agreement.

Even where you cannot reach agreement, it may still not be worth your while to begin an action. Always consider the unavoidable element of hostility; the chance that your action may not succeed; the time consumed; the inevitable mental and physical strain; the legal costs; and whether the defendant has sufficient assets to pay you if you do win the case.

You should also note that in many cases, legal procedures will be needed that are considerably more complicated than the basic procedures described in this general reference booklet. It is thus always advisable to seek the help of a qualified legal practitioner, whether through legal aid or otherwise.