Prospects for cross-border services
The fundamentally different judiciary system on the mainland poses challenges and opportunities for law practitioners in Hong Kong, according to Kennedy Wong Ying-ho, managing partner of Philip K. H. Wong, Kennedy Y. H. Wong & Co and National Committee Member of the Chinese People's Political Consultative Conference.
Dr Wong said Hong Kong law practitioners might feel uncomfortable in the mainland, where continental law was practised. In contrast to the common law system in Hong Kong, the continental law system in the mainland is inquisitorial. Mainland courts also base judgments on the provisions of codes and statutes, on which they elaborate broadly, and settled precedents did not have any legally binding power in court rulings. In the common law system, cases are the primary source of law, while statutes and codes are interpreted narrowly.
The mainland judiciary system is also closely entwined with the administrative system and the party rule, implying different role expectations in the judiciary system, and different procedures in court rulings. For example, judges take the role of mediator, seeking resolution between the defendant and the prosecution, and may investigate a case by communicating with the witnesses in person. And the process of reaching a verdict may be delayed as different government officials offer their views about a court case which may affect the court ruling.
Mainland judges are allowed and expected to do what may be unanticipated or even prohibited in common law societies. 'I suppose there are pros and cons. Judges in the mainland are taking a much more active role in investigation and interrogation, which means that they could have a more complete understanding of cases,' said Dr Wong. 'Mainland judges are not necessarily practicing lawyers. Anyone who has passed the licensing examination would qualify to be a judge. That means they have more diverse backgrounds, knowledge and deeper understanding of society, compared with judges in Hong Kong.'
He said Hong Kong legal practitioners should look at the mainland as if they were studying a different jurisdiction system, adding they had to adjust their expectations according to the structural and political set-up.
Dr Wong foresees opportunities for those who have understanding of both judiciary systems because legal services go hand in hand with economic growth. With the opening up of the mainland to the global market, the increased volume of international trade could lead to a need for cross-border legal services.
The judiciary system in the mainland is comparatively young because it was rebuilt in the late 1980s after the Cultural Revolution, and mainland law practitioners and legal professionals have yet to build up experience in liaising with overseas partners. This meant there could be a niche market for Hong Kong legal experts who had experience in international commerce. 'As the economic development of Hong Kong is already largely integrated with that of the mainland, there is a need for education on comparative laws to help law practitioners better understand the systems across the border.'