GE1214 CITIZENS AND CRIMINAL JUSTICE Lecture No 4: HK’s legal system and discussion of what is a crime
1. Definitions of crime
Courts will determine if a matter is considered to be a crime based on the following:
1 The classification of the offence under domestic law. 2 The nature of the offence; and
3 The nature and severity of the potential sanction.
In Chan Kin Shing Sonny v Insider Dealing Tribunal and Another,
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it was held that although certain proceedings for insider trading were classified as civil in nature by
the legislature e.g. the breach did not result in a criminal record this was not determinative of the issue. The presence of a substantial penalty for a breach of the
governing provisions, and the serious and insidious character of insider trading, lead to the classification of the proceedings as criminal in nature:
2. Sources of Hong Kong’s criminal law
Hong Kong’s criminal law is based upon the criminal law of England and
Wales because of Hong Kong’s colonial past.
The common law applies here despite the reversion of sovereignty in 1997 because the Basic Law
of the Hong Kong Special Administrative Region of the People’s Republic of China provides for the common law to continue to
apply to Hong Kong.
Some offences are still common law offences. Murder is an example, as is kidnapping. Murder is not defined in an ordinance in Hong Kong. We find
its definition in the cases.
Most criminal law is in the ordinances enacted by the Hong Kong
legislature. These ordinances will usually follow an English ordinance, certainly up to 1
st
July 1997.
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[2008] HKCFA 22.
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When we are dealing with a question of criminal liability, for example
whether a theft has been committed we will go to the source material, the Theft Ordinance Cap 210. We see there in section 2 the definition of theft:
1 A person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and thief and
steal shall be construed accordingly.
2 It is immaterial whether the appropriation is made with a view to gain, or is made for the thiefs own benefit.
In determining whether a statute is valid, it must be consistent with the Basic Law and the Hong Kong Bill of Rights Ordinance Cap 383.
3. The elements of crime
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