Christina Cheung, Law Officer of the Civil Division of the Department of Justice, speaks about the Division’s current work and its main priorities in 2017, which include taking a number of dispute resolution-related bills forward and continuing to maintain and uphold the rule of law in Hong Kong.
Can you briefly explain the Civil Division’s role within the Department of Justice?
We often ask those who wish to join the Department of Justice (“DoJ”) as trainees or Government counsel this same question, and the answers given, perhaps unsurprisingly, have almost invariably been “judicial review”.
But the work of the Civil Division (“CD”) is, in fact, diversified. It is closely intertwined with a variety of everyday issues, big and small, such as taking daily transport, enjoying a day at Disneyland or Ocean Park, watching TV, drinking water, paying salaries or profit tax, buying a property, paying electricity bills, operating a market stall managed by the Government, voting at an election or attending to burial matters, and the like.
The CD’s work interfaces with the public mainly through advising Government bureaux and departments on various legal issues arising from the work of the Government and, where necessary, representing the Government in civil proceedings. In recent times, for example, CD counsel have been involved in the drafting and tendering of contracts for major infrastructure projects, such as the Hong Kong-Zhuhai-Macao Bridge and the Central-Wan Chai Bypass. Recent court and other legal proceedings in which CD counsel have acted include: the Commission of Inquiry into Excess Lead Found in Drinking Water and cases concerning free TV licensing, immigration matters (including non-refoulement claims), the Legislative Council oath-taking cases, as well as the proposed legislation for a licensing scheme to regulate private columbaria.
Another important role of the CD is to provide legal support to the Secretary for Justice (“SJ”) in matters involving public interest. For instance, the SJ may in an appropriate case make application for judicial review to enforce public legal rights, or to intervene in a case involving the constitutionality of a legislative provision, or to join as a party in action to enforce charitable or public trusts, and bring alleged contempt of court to the notice of the courts.
This diversified range of work is handled by four units in the CD namely, Civil Advisory; Civil Litigation; Commercial; and Planning, Environment, Lands and Housing, all of which provide legal support to the Government in their own specialised areas. In addition, the Legal Advisory Division (Works), another unit supported by counsel from the CD, is responsible for providing legal services (both contentious and non-contentious) to the whole of the Government’s construction programme including construction contracts and related claims and disputes.
An important facet of the work of the CD is handling judicial review cases. The surge of judicial review proceedings is a fact of life. Given the increasing public awareness of their legal rights, the number of challenges against Government policies and decisions through judicial review, and often involving constitutional issues, has constantly been on the rise. Judicial review has not just become a popular term but also something which warrants attention of any responsible public authority. The law is rapidly developing in these areas and has certainly presented new challenges.
What were your thoughts coming into your current role, given your predecessor’s legacy?
I took over from Mr. Benedict Lai as the head of the CD in February 2015. In his 12 years as a Law Officer (Civil Law), he was an inspiring leader, who made significant contributions to the development of law in Hong Kong. I certainly felt that I had big shoes to fill to meet the high benchmarks that had been set.
I also felt most fortunate when I joined because Mr. Lai and his predecessors left me with strong teams of government lawyers, who possess a wealth of experience in different specialised civil law areas, and with a variety of functioning systems that have enabled me to effectively manage the CD’s sizable office from my very first day. The solid foundations they laid unquestionably gave me a head start, particularly with managing over 190 professional and almost the same number of supporting staff.
What will the CD’s main priorities be in 2017?
Important initiatives for the new year include taking forward the Apology Bill. There is a need for legislation in Hong Kong to clearly define the meaning of “apology” and the legal consequences for persons making apologies, as well as clarify the effect of apologies, so as to promote and encourage the making of apologies in order to facilitate settlement of disputes. On 28 November 2016, the Steering Committee on Mediation published the “Enactment of Apology Legislation in Hong Kong: Final Report and Recommendations”. The Steering Committee on Mediation conducted two rounds of public consultations and the responses received were clearly supportive of the enactment of apology legislation in Hong Kong. The Administration of Justice and Legal Services Panel of the Legislative Council has been briefed on three occasions and there was support from members of the Panel. The DoJ will take forward and prepare the enactment of the legislation in the legislative year 2016/17. Hong Kong will become the first common law jurisdiction in Asia to have apology legislation enacted and this will help further enhance Hong Kong’s status as a centre for dispute resolution in the Asia Pacific region.
In addition, the work plan for 2017 also includes the introduction of Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016 (the “Bill”) into the Legislative Council in early 2017. The purpose of the Bill is to clarify that third party funding for arbitration and mediation is not prohibited by the common law doctrines of maintenance and champerty. The Bill provides for related measures and safeguards based on the recommendations made in the Report on Third Party Funding for Arbitration published in October 2016 by the Law Reform Commission of Hong Kong. It is likely that a party to an arbitration or mediation taking place in Hong Kong may wish to consider whether or not to seek third party funding of its participation in such an arbitration or mediation if it is clearly permitted by Hong Kong law to do so. We believe the amendments will enhance the competitiveness of Hong Kong as a leading centre for international legal and dispute resolution services in the Asia Pacific region. The Steering Committee on Mediation was consulted and supports the amendments to the Mediation Ordinance. It is envisaged that the Bill will be introduced into the Legislative Council in early 2017. The Mediation Team in the CD will continue to work closely with the Arbitration Unit in the Legal Policy Division of the DoJ in this respect.
We will also explore the different modes of mediation that can be used to resolve different natures of disputes, for example, the use of evaluation mediation on top of facilitative mediation to resolve disputes such as those concerning intellectual property rights, so as to provide more choices to end-users of mediation. With the support of stakeholders, we will explore the features of evaluative mediation and study the need to enhance the regulatory framework and training to mediators to ensure that if evaluative mediation is adopted, it will be used properly.
In sum, in 2017, the CD will continue to discharge its role in maintaining and upholding the rule of law through providing legal advice and representation to Government bureaux and departments in their day-to-day work. Through its Mediation Team, the CD will continue to take forward the work required to sustain the further development of mediation in Hong Kong. This will complement the efforts of the DoJ in promoting Hong Kong as an international legal and dispute resolution centre in the Asia Pacific region.
As developments in the mediation sphere have been a hot topic of discussion in legal circles across the region, can you tell us more about the CD’s mediation team and their current work?
The CD’s Mediation Team has been providing support to the Steering Committee on Mediation chaired by the SJ to implement long-term policies that promote and develop mediation in Hong Kong as well as its three sub-committees, namely the Regulatory Framework Sub-committee; the Accreditation Sub-committee and the Public Education and Publicity Sub-committee. Since the establishment of the Steering Committee on Mediation in late 2012, the Mediation Team has implemented various major initiatives in support of the work of the Steering Committee.
These initiatives include the holding of the biennial Mediation Week in 2014 and 2016, which consisted of mediation seminars and talks on specific topics related to the promotion of mediation, and the Mediation Conference with overseas and local speakers. The theme of the latest Mediation Week held in May 2016 was “Mediate First – Advance with the times”. During the week, we organised a whole range of activities with the support of mediation stakeholders including the Hong Kong Bar Association, the Law Society of Hong Kong, the Hong Kong International Arbitration Centre, the Hong Kong Mediation Centre, Hong Kong Mediation Accreditation Association Limited, Hong Kong Joint Mediation Helpline Office, the Intellectual Property Department, the Hong Kong Society for Healthcare Mediation, Hong Kong Family Welfare Association, to name but a few. Seminars for specific sectors such as education, medical, commercial, community and intellectual property were held to further promote the healthy development of mediation in Hong Kong. The Mediation Conference which was the highlight of the Mediation Week was attended by leading international speakers from the United Kingdom, the United States, the Mainland, Australia, local experts and practitioners who shared with the audience their invaluable experience and expert views on the latest global developments in the mediation sphere. The Conference has produced much food for thought on the future development of mediation and highlighted global trends that make use of its full potential and flexibility. The Mediation Team is planning to organise another Mediation Week in 2018.
The Mediation Team is also planning to organise a “Mediate First” Pledge Reception in 2017 following the last one in 2015 to promote the use of mediation by commercial and other organisations and associations. Mediation is most suitable for commercial entities and small and medium size enterprises in particular because of the flexibility of its procedures and the lower costs involved, relatively speaking. It has been very encouraging to see the pledges made by different organisations and associations to commit to first resorting to mediation as a means to resolve disputes that relate to their business dealings.
Do you have any advice for junior solicitors or those interested in pursuing a career in law?
Continuing education and training is an essential part of the learning process of every young lawyer whether they work for the Government or the private sector given the ever changing legal landscape. Over the years, the CD has placed a lot of emphasis on training. We regularly organise training courses, workshops or sharing sessions on legal topics. In 2016, for example, we organised training covering topics on judicial review, competition law, planning law, construction law and mediation. We have also provided training to our litigation counsel in advocacy and opportunities to participate in the work of overseas chambers to gain experience in relevant areas of work. The exposure gained by our young lawyers has been most rewarding.
As for my advice to junior lawyers, given the new challenges and opportunities the changing world and legal landscape present, they must continue to broaden their outlook and be creative. Law is not an abstract practice. In addition to academic performance and developing requisite skills, such as research and analytical skills, one has to understand people, as lawyers work with people and on behalf of people. It is vital to always remember that the legal services performed by lawyers often affect people’s livelihoods.
Can you tell us about how you developed your keen interest in English literature?
I have always taken a keen interest in reading English literature from which I have derived much inspiration throughout my legal career. I do not see the law as an abstract practice. Rather, each legal case has a human aspect that I believe is best conveyed through “storytelling”. More to the point, both literature and the law emphasise the importance of clear expression and a deep understanding of language. Whether you are talking about the law or about literature, the two disciplines offer much insight into myriad social and political values. Effectively employing logic and argumentation theories are also crucial to both a good piece of fiction, poem or play and well-presented legal advice and advocacy.
Anything else you would like to share?
I am often asked for “insider tips” from graduates who are interested in working with the DoJ as Government counsel. While there is no special recipe or shortcut to landing a position with the DoJ, I would like to stress that people are the DoJ’s most valuable asset. As such, the CD is keen to speak with candidates who are strongly committed, dedicated and have the long term potential to contribute to the DoJ’s work.
I would also like to add that the CD often participates in providing training to Government officials and civil servants in order to enhance their understanding of our constitutional make-up and the legal environment in which we all work. We upload selected judicial decisions in civil cases, including judicial review cases that involve important or significant legal principles or issues of public interest on the DoJ’s website.
Law Officer (Civil Law), Department of Justice
In February 2015, Ms. Cheung was appointed the third Law Officer (Civil Law) of the HKSAR, succeeding Mr. Benedict Lai. In that capacity, Ms. Cheung heads the Department of Justice’s Civil Division, which has a major role in advising on civil law issues and conducting civil proceedings involving the Government as well as providing support in promoting and developing the use of mediation in Hong Kong.
Ms. Cheung joined the Government in May 1995 as a Senior Crown Counsel. She was promoted to Deputy Principal Government Counsel in May 2001 and to Principal Government Counsel in August 2008. She has been an accredited mediator since 2010. Ms. Cheung is currently an ex-officio member of the Process Review Panel for the Securities and Futures Commission, member of the Steering Committee on Mediation and member of the Sub-committee for Civil Court Registry Users.