How different is the experience of litigation in Mainland vs. Hong Kong?
Cross-Border Litigation Lawyer: Mainland-Hong Kong Court Sessions
Before practicing as a Hong Kong lawyer in Hong Kong, I practiced civil and commercial litigation in the Mainland for many years, and I have held court sessions in the high courts, intermediate courts, grassroots people’s courts and tribunals in many parts of the country, including developed regions such as Beijing and Shanghai, medium-sized cities such as Hangzhou and Suzhou, and undeveloped regions such as Northeast China, and I have had quite a lot of courtroom experience. Since practicing in Hong Kong, I have also been engaged in civil and commercial litigation, which has often required me 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?
Hong Kong litigation system vs Mainland litigation system
I think the Hong Kong litigation system and the Mainland litigation system have their own advantages and disadvantages. I have heard and seen too many views that are totally negative towards the Mainland legal system, but after practicing in Hong Kong and getting to know it better, I really feel that the Mainland legal system actually has its own merits and problems.
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Efficiency of the litigation system – the Mainland is better than Hong Kong
In the Mainland, due to the limitation of the trial period, many civil and commercial litigations can be concluded and judgment handed down in three to four months, and most of the cases should be completed in six months. In Hong Kong, a civil and commercial case in which the defendant is sued will generally take one to two years from the filing of the lawsuit to the completion of the trial and the handing down of a judgment, or at least one year in the case of a quicker trial. In Hong Kong, there is no time limit for the trial of a case, and a large number of cases have not been dealt with for several years. Although Hong Kong has tried to improve efficiency through Civil Justice Reform, the results have not been obvious. From the point of view of achieving justice as soon as possible, would you prefer the litigation legal system in the Mainland or Hong Kong? 
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Cost of Litigation – Mainland is better than Hong Kong
Litigation in Hong Kong is generally more expensive than in the Mainland. Although the courts in Hong Kong basically do not charge litigation fees (judicial services are public services and basically free of charge), lawyers’ fees in Hong Kong are generally more expensive than those in the Mainland. Hong Kong generally implements an hourly rate system, with lawyers generally charging between 2,500 and 5,000 per hour. For smaller cases, if the plaintiff’s case is not very strong and the defendant has property that can be enforced, I would advise my clients to think twice about spending money on a lawsuit. For a large number of cases with small amounts of money, the relatively expensive legal fees in Hong Kong are an obstacle to the realization of legal justice. However, given the complexity of the litigation procedures under the common law system of Hong Kong, it is 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 fees charged by lawyers in the Mainland are comparatively lower. On the whole, the costs of litigation under the mainland litigation system are significantly lower than those under the Hong Kong litigation system. It is also much less difficult for a client to litigate on his own without a lawyer than it is in Hong Kong.
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Impartiality and Integrity of Judges – Hong Kong clearly outperforms the Mainland
Although the Mainland’s judicial reforms are moving towards fairness, integrity and independence, I have seen and encountered many corrupt and unfair judges in my practice on the Mainland, and the list goes on and on. In litigation on the Mainland, the parties concerned sometimes need to consider whether they have any acquaintances, friends or classmates in the Court who 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 great confidence that all judges are clean and honest. To win a lawsuit in Hong Kong relies on sound justifications and the legal knowledge and experience of the lawyers, and nothing else.
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Procedural fairness – Hong Kong is better than the Mainland
Litigation in Hong Kong emphasizes procedural fairness. Unless both parties voluntarily agree, disputes over procedural issues must be decided in court by presenting facts and reasoning. At the same time, the litigation system in Hong Kong is more flexible and less rigid. For example, the various time limits for litigation are not rigid; if you have good reasons, the court can grant an extension (this is also a cause of delay in litigation). Hong Kong’s litigation system clearly places greater emphasis on procedural fairness.
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Professional standards of judges – Hong Kong is better than the Mainland
Judges in Hong Kong are generally selected from amongst senior barristers, and their professional standards are generally very high (no comment on personal circumstances). Although there are many outstanding judges with high professional standards in the Mainland, it can be said that their standards vary. Just find out a Hong Kong court judgment at the judicial website www.judiciary.gov.hk, you will find that every judgment is clearly written with facts and reasoning, dozens of pages or even hundreds of pages of the judgment, reflecting the real professional standard.
Observations of Cross-Border Litigators
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Unclear Roles of Lawyers and Clients in Mainland Civil Litigation Procedures
In civil and commercial litigation proceedings in the Mainland, lawyers act as litigation agents for their clients. Whether it is a question of fact or a question of law, there seems to be no clear distinction between what should be said by the lawyer and what should be said by the client. For example, in a matrimonial case a year ago, the lawyer on the other side (representing the husband) made an impromptu statement in court, accusing our client (the wife) of laziness in family life, failure to do household chores, and frequent outbursts of tantrums, which had led to the break-up of the couple’s relationship. I immediately reminded the Court that the other party was a lawyer, not a client or a witness. Did you see this, lawyer? If you have not seen it, on what basis can you say so? However, the other lawyer said that he was an agent and he was speaking on behalf of his client. The Judge could not figure it out and had to end the case in a slapdash manner.
In Hong Kong, the status of lawyers in litigation is completely and clearly independent of their clients. In court proceedings, if a solicitor is instructed to appear in court, the solicitor will handle everything and make statements in court, and the client does not have to appear in court (except for cases involving personal relationships, such as matrimonial and family cases), and even if the client does appear in court, he or she does not have the right to speak (unless he or she is a witness to testify to a question of fact). At the same time, solicitors will never advocate on a question of fact without the support of written evidence or testimony, otherwise they will be criticized by the court for being confused about their identity. Facts can only be proved by witnesses (and the client can be a witness) and evidence. Witness statements or affidavits must be submitted to the court before a solicitor can make a statement on a question of fact in court. Witness statements and affidavits on questions of fact can only be given by the parties themselves or by witnesses, and in principle, they cannot be given by lawyers.
In my opinion, in the reform of civil litigation procedures in the Mainland, there is a great need to clarify the role of lawyers. In litigation proceedings, the roles of lawyers and clients should not be duplicated. Lawyers have to safeguard the interests of their clients, but they should not simply be a tool to speak for their clients in court.
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Code of Conduct for Solicitors
In Hong Kong, all questions of fact must be proved by evidence, or by the client himself (by attending court to give evidence, or by affidavit), and a solicitor must not knowingly lie to deceive the court, or he may be penalized by the court. One of the important rules of professional conduct for solicitors is that they must have integrity, and if a solicitor is found to have acted dishonestly, his or her license may even be revoked.
In the Mainland, since witnesses usually do not testify in court, when it comes to problems that cannot be adequately proved by written evidence, many lawyers will deal with them according to the principle of how to say what is favorable to the client. For example, in the section of evidence, the response of some lawyers is that as long as the other party does not have any written evidence to prove it, the lawyer will rely on it, even if it is obviously inconsistent with the facts, or if the inconsistency is revealed in court, it does not matter. Some lawyers even take pride in this, thinking that this is their own skill and that they have safeguarded the interests of their clients, but in fact, this has tarnished the overall image of the profession of lawyers.
In Hong Kong, there is a very comprehensive set of common law principles and rules of practice derived from them in respect of the professional code of practice for solicitors, the relationship between solicitors and their clients, the relationship between solicitors and the court, and the relationship between solicitors and other solicitors. When a lawyer encounters various practice problems in the course of his practice, he will know clearly what to do and what not to do by applying these principles and rules. On the contrary, the rules and codes of practice for lawyers in the Mainland lack a complete theoretical system, and even if there are codes of practice, they are fragmented and difficult to solve many practical problems.
In my opinion, the Mainland needs to learn from the common law in terms of the lawyers’ practice system.
(Author: Mr. Bob Yan of principal solicitor of YAN Lawyers, Email: [email protected], WeChat/WhatsApp: +852 51039249 )
