Time for deeper, detailed exchanges between Hong Kong and mainland Chinese courts

As economic ties between the two places grow, there is also a need for more specific exchanges between courts to deepen our understanding of issues Lee Tung Avenue in Wan Chai festooned with national and Hong Kong flags ahead of the 29th anniversary the city’s return to Chinese sovereignty in June this year. Photo: Karma Lo One of the main features of the “one country, two systems” principle is that, despite our physical proximity, Hong Kong has a very different set of laws from those of mainland China. Very often, we talk about our differences when explaining the system to one another. But at heart, both legal systems seek to deliver justice in real-life situations. Indeed, our connections with the Chinese mainland, in particular the Greater Bay Area, are growing closer every day. Many economic and commercial activities cross the border. There are many commercial transactions involving both Hong Kong and mainland Chinese law. Disputes arise, and the courts in both Hong Kong and mainland China increasingly have to grapple with cross-border issues. It is against this backdrop that mutual understanding of specific commercial law concepts becomes more beneficial. This month, the High People’s Court of Guangdong Province, the Guangdong Judicial Training College, the Hong Kong Department of Justice and the Hong Kong International Legal Talents Training Academy co-organised a training course for mainland Chinese judges involved in adjudicating cases with foreign elements. The more than 100 attendees were mainly judges from the Greater Bay Area, but there were also judges from neighbouring provinces such as Guangxi, Hunan and Hainan. The Hong Kong speakers included a High Court judge and several members of the Hong Kong Inner Bar, including myself. Mainland Chinese speakers included a judge from the Supreme People’s Court as well as commercial judges from the High People’s Court of Guangdong Province. A special feature of this course was its specificity. It was a three-day course on one particular topic, namely, guarantees and securities for loans. The topic was selected because of its prevalence in actual disputes. The course went into some detail on various types of guarantees and security interests. I was assigned to speak about charges under the Companies Ordinance. Needless to say, the attendees’ expertise and experience meant that many thought-provoking questions were asked about how our respective laws dealt with particular situations. The discussion even extended to the possible historical reasons why our respective laws took different paths in their approaches to various questions. Speaking for myself, this was a highly rewarding experience. I have taken part in many exchanges dealing with general differences between our legal systems. Such exchanges are helpful, but the interactions between Hong Kong and the Chinese mainland are such that more in-depth exchanges would also be beneficial. Participants in this course were judicial officers who had day-to-day experience in dealing with actual cases that raised practical issues. Those issues also arise in our own practice in Hong Kong, and it is fascinating to exchange views on how they should be handled under the law. The structure of this course was such that those of us from Hong Kong shared our experiences and knowledge on stage, as it was primarily an occasion for mainland judges to learn more about us. But it also gave those of us from Hong Kong an invaluable opportunity to learn, at both general and specific levels, about the substance of mainland Chinese laws and practices on guarantees and security interests. Comparisons between our respective approaches also gave us an occasion to reflect on why our law has chosen to deal with specific issues in the ways that it does, and indeed whether these are the wisest ways to address them. As cross-border ties between Hong Kong and mainland China strengthen, there is also a need for the courts of both places to engage in deeper exchanges. Photo: Getty Images Informal exchanges between the formal sessions also offered us a great opportunity to understand the work of mainland Chinese courts, from the eye-wateringly large number of cases they have to handle to the ways in which their inquisitorial system differs from our adversarial one. We even managed to exchange views on the accuracy of legal dramas produced in Hong Kong and mainland China. Unhandled type: inline-plus-widget {"type":"inline-plus-widget"} I am sure we all understand and agree that mutual understanding between professionals - not only in the law but also in other professions - in Hong Kong and the mainland is beneficial. I believe that our connections are such that we have now arrived at a stage where a highly specific and practical form of mutual understanding is required. I am grateful to the organisers of this event for allowing me to take part in it, and I hope there will be more such occasions to come. Bernard Man SC is the current chairman of the Hong Kong Bar Association’s committee on land, trust and probate and a civil litigator. Legal Tales is a weekly column by senior members of the Hong Kong Bar Association presenting their perspectives on current affairs.