Cross-Border Litigation Lawyer: Mainland-Hong Kong Court Sessions
Before I came to Hong Kong to study and practise as a Hong Kong lawyer, I had been practising civil and commercial litigation in the Mainland for many years, and had held court sessions in the high courts, intermediate courts, basic people’s courts and tribunals of many places in the country, such as the courts in the developed regions such as Beijing and Shanghai, and the medium-sized cities such as Hangzhou and Suzhou, and also had the experience of holding court sessions in the courts of some underdeveloped regions such as the Northeast region. Since I started my practice in Hong Kong, I have also been engaged in civil and commercial litigation, and therefore I often have to attend court hearings in the High Court and District Court of Hong Kong. Some of my colleagues in Hong Kong and the Mainland often ask me curiously: What is the difference in experience between sitting in a court of law and sitting in a court of law in Hong Kong?
Advantages and disadvantages of Hong Kong’s litigation system over the Mainland’s litigation system
From the point of view of the general public, I think the legal system of litigation in Hong Kong has its own merits and demerits as compared with that of the Mainland. I have heard and seen too many views that are totally negative towards the mainland legal system, but after practising in Hong Kong and gaining a better understanding of the system, I really think that the mainland legal system actually has its merits, though there are undeniably major flaws.
(1) Efficiency of the litigation system – the Mainland is better than Hong Kong
In civil and commercial litigation in the Mainland, a case can be concluded and judgement handed down in 3-4 months under normal circumstances, and most cases should be concluded in 6 months. On the other hand, in Hong Kong, a civil and commercial case in which the defendant is the respondent, from the filing of a lawsuit to the completion of the court hearing and the delivery of a judgement, very often it will take one or two years, and in the case of a relatively quicker case, I think it will also take eight months to one year. In Hong Kong, there is no time limit for the hearing of a case and a large number of cases have not been heard for several years. Although Hong Kong has endeavoured to enhance efficiency through the Civil Justice Reform, the results are not obvious. Imagine if you were a plaintiff, would you favour a more efficient litigation legal system in the Mainland or in Hong Kong?
(2) Cost of Litigation Fees – The Mainland is better than Hong Kong
Litigation in Hong Kong is slower and generally more expensive for parties to spend than on the Mainland. Although the courts in Hong Kong basically do not charge litigation fees (the judicial public resources are free of charge), lawyers’ fees in Hong Kong are generally more expensive than those in the Mainland. Hong Kong generally implements a system of hourly rates, with most lawyers generally charging between 2,500 and 5,000 per hour. For cases with a relatively small or not too large subject matter, if the plaintiff’s case is not very strong and the defendant has property to run with, I would advise my clients to think twice about adding insult to injury by spending money on a lawsuit. Thus, for a large number of cases of modest amounts, Hong Kong’s more expensive litigation system is an obstacle to achieving legal justice. On the contrary, given the inherent complexity of litigation procedures under the common law system of Hong Kong, it is simply unlikely that the general public will be able to fight their own cases without lawyers.
Compared with the situation in Hong Kong, although the courts in the Mainland have to charge a considerable amount of litigation fees, the lawyers’ fees in the Mainland are relatively low. For a large number of cases involving small to medium amounts (for example, several hundred thousand or one or two million RMB), the litigation costs incurred by the parties concerned under the litigation system in the Mainland are obviously lower than those under the litigation system in Hong Kong. It is also much less difficult for the parties to litigate without lawyers than in Hong Kong.
(3) Impartiality and Integrity of Judges – Hong Kong is better than the Mainland
Although the judicial process in the Mainland is constantly being reformed in the direction of fairness, integrity and independent judgement. However, during my practice in the Mainland, I have seen and come across some corrupt and unfair judges, and I am not going to list all the bad practices. In litigations on the Mainland, the parties concerned sometimes have to consider whether they have any acquaintances, friends or classmates in the court, so that they can say hello to them. In Hong Kong, there is no doubt about the impartiality and integrity of Judges. As a lawyer in Hong Kong, I can say with confidence that lawyers do not have to consider whether a Judge is clean and honest, and they do not have to seek connections. In Hong Kong, winning a lawsuit relies on legal knowledge and experience, not on connections.
(4) Procedural fairness – Hong Kong is better than the Mainland
The litigation process in Hong Kong attaches great importance to procedural fairness. Unless both parties voluntarily reach an agreement, disputes on various procedural issues have to be decided by the court by presenting facts and reasoning in court. At the same time, the litigation system in Hong Kong is more flexible and less rigid. For example, the time limits for all kinds of litigation are not rigid; if you have good reasons, the court can grant an extension (which is also a cause of delay in litigation).
(5) Professional standard of judges – Hong Kong is better than the Mainland
The professional standard of judges in Hong Kong is relatively high. Although there are many excellent judges with good professional standards in the Mainland, the standards vary and there are many poor judges. Just take a look at a Hong Kong court judgement (www.judiciary.gov.hk), every one of them is clear in its regulations, setting out facts and reasoning, and there are tens of pages or even hundreds of pages of judgements, which are of a real standard. In contrast, although there are many excellent judgements of mainland courts, there are also many things with just a few words or even unclear logic.
Some Observations of Cross-Border Litigation Lawyers
(1) The roles of lawyers and clients in civil proceedings in the Mainland are confusing.
In civil and commercial litigation procedures in the Mainland, lawyers act as agents of their clients. There seems to be no clear distinction between what should be said by the lawyer and what should be said by the client, whether it is a question of fact or a question of law. For example, in a matrimonial case some years ago, the opposing lawyer (representing the husband) said in court that our client (the wife) was lazy in family life, did not work or do housework, and often lost her temper, which led to the breakdown of the relationship between the couple. I immediately reminded the court that the other party was a lawyer, not a client or a witness, and had he seen these family matters? If you haven’t seen it, on what basis does the lawyer say this? However, the other lawyer said that he was an agent and that he was speaking on behalf of his client. The Judge could not figure it out and had to end the case in a sloppy manner.
In civil proceedings in Hong Kong, lawyers are completely independent of their clients in litigation. In court proceedings, if a lawyer is instructed to appear in court, the lawyer will represent the client in court and the client does not have to appear in court (except in status-based litigation, such as matrimonial litigation), nor does he have the right to speak in court (unless he testifies as a witness on a question of fact). At the same time, the attorney will never make empty statements about the facts, or the court will chastise the attorney for being confused about his or her role. Facts are proved by witnesses (the client himself can also be a witness) testifying and by evidence, and a lawyer’s statement in court on a question of fact must be based on the contents of a witness statement or affidavit that has been submitted to the court in advance. And the person who makes the witness statement or affidavit is legally liable (criminally liable) for making a false statement or affidavit.
I think that in the reform of civil procedure in the Mainland, it is extremely necessary to clarify the role of lawyers. In litigation proceedings, the role of lawyers and that of their clients should not be duplicated. Lawyers should safeguard the interests of their clients, but they should not simply be tools to speak in court in place of their clients.
(2) Issues of professional conduct of solicitors
In Hong Kong, all questions about the facts, must be proved by the evidence, or by the parties themselves (testify in court, or in the form of affidavit testimony), lawyers absolutely can not intentionally lie to deceive the court, the lawyer’s professional code of conduct there is an important one is that it must be integrity.
In the mainland, because usually witnesses do not testify in court, encounter written evidence can not be fully proved problems, many lawyers in accordance with how to say how to deal with the principle of the client’s favour, and some even have no qualms about obviously lying (as long as the other party does not have the written evidence to prove that the lawyer will deny, although obviously lying), even if they were revealed in the first place, but also does not matter. Some lawyers even take pride in this, think this is their own ability, maintain the interests of the client, but in fact damage the overall image of the profession of lawyers.
(3) Rules and codes of practice for solicitors
In Hong Kong, there is a very comprehensive set of common law principles and derived rules of practice for solicitors in Hong Kong in respect of the professional code of conduct for solicitors, the relationship between solicitors and their clients, solicitors and the court, and solicitors and other solicitors. In the course of their practice, lawyers can know clearly what to do and what not to do when they encounter various practice problems. On the contrary, on the Mainland, the rules and codes of practice for lawyers lack a complete theoretical system, and even if there are codes of practice, they are fragmented, making it difficult to solve many practical problems.
In my opinion, the system of lawyers’ practice is something that the Mainland needs to learn from the common law in particular.
(Bob Yan, principal solicitor of Yan Lawyers, solicitors. Email: [email protected], Tel: +852 31881995, +86 15018939249, WhatsApp: +852 5103 9249)