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CLIC Glossary & Annotation

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

A

Advice Centres for Duty Lawyer Service Free Legal Advice Scheme

 

All Advice Centres are in District Offices. For details of the Advice Centres, please go to

http://www.dutylawyer.org.hk/en/free/legal.asp

 

Affidavit/Affirmation

 

A document made on oath (in front of a court officer or a lawyer) by a person guaranteeing the truthfulness of its content.

 

All employees who are covered by the Employment Ordinance

 

the Employment Ordinance applies to every employee who is engaged under a contract of employment, with the following exceptions:

  1. persons who are family members of the business proprietor by whom they are employed, and also live in the same dwelling as that proprietor;
  2. employees as defined in the Contracts for Employment Outside Hong Kong Ordinance ;
  3. persons who are serving under crew agreements within the meaning of the Merchant Shipping (Seafarers) Ordinance, or on board a ship that is not registered in Hong Kong;
  4. contracts of apprenticeship registered under the Apprenticeship Ordinance except to the extent provided in that Ordinance.

 

Asset of Legal Aid applicants (single persons)

 

If you are applying for Legal Aid on behalf of your child under 18 years old, there is no need to include the assets or income of you or your spouse here. Only the child's assets and income will be assessed.

 

Under the Legal Aid regulations, the disposable capital is normally assessed as at the date of the application for Legal Aid. The value of any outstanding debt or liability of the applicant cannot be taken into account in reducing the applicant's disposable capital.

 

If the assets are the subject matter of dispute in the proceedings for which Legal Aid is applied, they will be excluded.

 

Asset of Legal Aid applicants (married persons)

 

As you are married, your spouse's income and capital will be treated as yours for calculating your financial resources (unless you and your spouse have already separated or divorced, or you and your spouse have conflicting interest in the proceedings). Please therefore remember to include your spouse's assets and income here.

 

If you are applying for Legal Aid on behalf of your child under 18 years old, there is no need to include the assets or income of you or your spouse here. Only the child's assets and income will be assessed.

 

Under the Legal Aid regulations, the disposable capital is normally assessed as at the date of the application for Legal Aid. The value of any outstanding debt or liability of the applicant cannot be taken into account in reducing the applicant's disposable capital.

 

If the assets are the subject matter of dispute in the proceedings for which Legal Aid is applied, they will be excluded.

 

Attachment of Income Order (to tackle outstanding alimony payments)

 

When an employee fails to pay alimony to a former spouse as required by the Court in divorce proceedings, the Court may then order the employer to deduct part of the employee's income for alimony payments.

B

Balance of probabilities (standard for adducing evidence in civil litigations)

 

Decision is made according to the likelihood or probability of the existence of an event. A 100% certainty is not required.

 

Benefits-in-kind own by Legal Aid applicants (single persons)

 

Any benefits received other than in cash (e.g. shares, share options and valuable goods).

 

Benefits-in-kind own by Legal Aid applicants (married persons)

 

Any benefits received by you or your spouse other than in cash (e.g. shares, share options and valuable goods).

 

By way of dividends (to the creditors in bankruptcy proceedings)

 

Usually the creditors could not recover the full amount and they will be paid in proportion to the size of their debts, but certain debts have priority, such as wage arrears or severance payments.

C

Capital assets

 

Examples of capital asset include a factory, an equipment or other fixed assets which can be utilized for producing income or deriving profits.

 

Case merits test in Legal Aid application

 

The Legal Aid Department will assess whether or not the applicant has reasonable grounds for taking or defending the proceedings.

 

Cause of action

 

A cause of action is generally the reason for a person or an organization to commence a legal action against another. Examples include breach of contract, negligence that causes injury to another person, or failure to repay a loan.

 

Common Law

 

The most distinguishing feature of common law is the reliance on the doctrine of precedent.

 

Committee of inspection (company’s winding-up proceedings)

 

The committee consists of creditors and persons who need to contribute to the assets of the company. Its function is to help supervise the exercise of power by the liquidator.

 

Committal Proceedings

 

Committal proceedings are proceedings before a Magistrate for determining whether or not there is enough evidence against a defendant for a criminal case to be transferred to the High Court for trial or sentence. Legal Aid is available to eligible defendants for providing legal representation in committal proceedings.

 

Committee of Review (handle appeals for rejections of Legal Aid)

 

The Committee of Review is set up under section 26A of the Legal Aid Ordinance and is made up of the Registrar of the High Court and a representative each of the Bar Association and the Law Society of Hong Kong . The Committee only deals with Legal Aid cases regarding appeals to the Court of Final Appeal.

 

Contracts to oust the jurisdiction of the courts

 

Contracts which state that the courts have no authority to make judgment on any litigation arising from the contracts. Such contracts (or the relevant terms in the contracts) are invalid unless the contracting parties agree that the potential disputes will be settled by arbitration instead of court proceedings.

 

Contributories (company matters)

 

According to section 171 of the Companies Ordinance, the term "contributory" means every person who is liable to contribute to the assets of a company in the event of its being wound up.

 

Counter Claim

 

A claim made by the defendant against the plaintiff in the same legal proceedings.

 

Court Master

 

They are the court officials who run certain kinds of court hearings in civil litigation. They have the authority to make decisions or to grant orders in relation to some applications made by the litigants.

 

Creditor's Bankruptcy Petition

 

A document to be filed to the Court for an application to grant a bankruptcy order against the debtor. The petitioner, according to different cases, has to complete either Form 10, Form 10A, or Form 10B as provided at the Bankruptcy (Forms) Rules. You may find samples of these forms at

http://www.hklii.org/hk/legis/en/reg/6B/sch.html.

D

Deed

 

A deed and its counterpart have to be signed, sealed and delivered by the contracting parties. That is to say, the parties have to sign the deed, affix a red seal (a small red wafer) next to their signatures, and exchange copies of the deed.

 

Deportation

 

A deportation order against a person shall require that person to leave Hong Kong and shall prohibit that person from being in Hong Kong at any time thereafter or during such period as may be specified in the order.

 

Domiciled in Hong Kong

 

There are a number of ways in determining whether a person is domiciled in Hong Kong. For example, people would be considered domiciled in Hong Kong if they are holding Hong Kong Permanent Identity Cards, or they are Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years.

 

Duty Lawyer Service

 

The Duty Lawyer Service is fully funded by the Government but is independently managed and administered by the Bar Association and the Law Society through the Council of the Duty Lawyer Service.

E

Election Petitions

 

Applications to the High Court to challenge the results of the Legislative Council or District Council elections.

 

Encumbrance

 

An encumbrance is a proprietary right held by one person over the property of another that limits the ways in which the owner may use or deal with the property.

The expression “encumbrance” in relation to land means a claim to the land or charges which could be imposed upon the land.

 

Under the Conveyancing and Property Ordinance (Cap. 219 of the Laws of Hong Kong), unless specified in the sale and purchase agreement, a vendor must be in a position to convey the property contracted to be sold free from all encumbrances.

 

Enforce the court judgment

 

To force the defendant/losing party to pay or to perform the duties as stipulated on the judgment by other legal means e.g. seizing the defendant’s properties through the bailiff and then converting them to cash.

 

Extradition proceedings

 

Proceedings held at the Magistrates Court for determining whether a person should be sent to a foreign country to answer criminal proceedings there.

F

Financial means test (Legal Aid application)

 

The Legal Aid Department will assess whether or not the applicant's assets and income exceed the financial eligibility limit for obtaining Legal Aid.

 

Final (decision about Legal Aid appeal)

 

The decision of the Registrar may be challenged by way of judicial review to the High Court if there is an error of law.

 

Form 10 (notice of intention to appear on a winding-up petition hearing)

 

You may find the sample of Form 10 (on the Appendix of Companies Winding-up Rules) at http://www.hklii.org/hk/legis/en/reg/32H/appendix.html.

G

H

Human rights

 

For example, according to Article 21 in Section 8 of the Hong Kong Bill of Rights Ordinance , every permanent resident shall have the right and opportunity and without unreasonable restrictions to vote and to be elected at genuine periodic elections. Such elections shall be run by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

 

Human rights related litigation

 

If the case involves a breach of the Hong Kong Bill of Rights Ordinance or inconsistent with the International Covenant on Civil and Political Rights as applied to Hong Kong .

I

Implied terms (about contract law)

 

Terms that have not been orally mentioned or written down but are incorporated in the agreement/contract according to the law or the previous dealings between the parties.

 

In general (about legal costs in Legal Aid cases)

 

Where however it appears to the court that a Legal Aid certificate has been obtained by fraud or misrepresentation or that an aided person has acted improperly in the proceedings, the court may order the aided person to be personally responsible for his own legal costs or the legal costs of the opposite party.

 

Insurance underwriting

 

The insurance company has to evaluate the potential risks and to make decision on whether or not to approve the insurance application (i.e. to undertake the relevant insurance coverage).

 

Interlocutory Judgment (in civil litigation)

 

It is a judgment made by the court without going through a formal trial. The judge may deliver the judgment after hearing the arguments or evidence given by one of the parties (plaintiff or defendant) only.

J

Judicial review

 

Applying to the High Court to examine the constitutionality of law and to decide whether an administrative decision of a Government body has violated the principles of justice. For more information about the procedures, please visit the Resource Centre for Unrepresented Litigants' webpage at http://rcul.judiciary.gov.hk/rc/chi/sform.jsp.

K

L

Law of tort

 

Tort is usually committed as the result of a person's fault or negligence that causes damage, loss or injury to the body or property of another person. Examples of tort include:

 

•committing a wrongful act that causes physical injury to a person;

•negligently making a misleading statement that causes a person to enter into a contract which ends up in financial loss;

•committing an act of nuisance (such as singing loudly or playing mahjong at midnight) that interferes with a neighbour.

Leading questions made at a court trial

 

Questions which attempt to guide the witness's answer or which assume a fact not yet proved. Here is an example of leading question: "Mr. A has told you that he had signed the contract on 1 Jan 2006, hasn't he?" If such a question is not permitted by the court, it should be broken down into questions like: "What did Mr. A tell you?", "When did he sign the contract?", "Had he told you the other party of the contract?"….

 

Legal Aid Department

 

You may go to either the:

•Legal Aid Department's Headquarters at 24/F, Queensway Government Offices, 66 Queensway, Hong Kong (near Admiralty MTR Station), or

•its Kowloon Branch Office at G/F, Mongkok Government Offices, 30 Luen Wan Street, Kowloon (adjacent to Mongkok KCR Station).

You may also telephone 2537 7677 (24-hour Interactive Voice Processing System), 2537 7661 (Headquarters) or 2380 0117 (Kowloon Branch Office) or email ladinfo@lad.gov.hk

 

Legal Aid Panel

 

The Legal Aid Panel is a list maintained by the Director of Legal Aid that consists of barristers and solicitors in private practice who are willing to undertake legal aid work.

M

Maintenance orders

 

For example, either party may be ordered by the Court to give financial support to the other party and/or the children for the costs of living.

 

Majority in number(approval of a company's repayment proposal)

 

Example:

•the total value of debts owed by all the creditors who vote in person or by proxy at the meeting is $1,000,000

•the total value of debts owed by the creditors who vote in person or by proxy at the meeting and agreed to the relevant arrangement is $750,000 (i.e. three-fourths of $1,000,000)

•those creditors who agreed to the arrangement (holding the total debts of $750,000) would be considered as the majority.

 

Market value adjustment (for the refund of insurance premium during the cooling-off period)

 

Such adjustment may be calculated solely with reference to the loss the insurance company might make in realizing the value of any assets acquired through investment of the premiums obtained from a life insurance policy. It may not include any allowance for expenses or commissions in connection with the issuance of the insurance policy.

 

Matrimonial home rights

 

Spouses have equal rights of occupation of the matrimonial home (the main residential home of the couple). If a husband/wife is the owner or tenant of that home, the other would normally have the right to live there.

 

Monthly Disposable Income (for married persons in Legal Aid applications)

 

The income and deductions are to be filled in on a monthly basis in this form. You therefore need to convert any amount that you receive or pay on a quarterly or yearly basis (e.g. yearly-end bonus to be received once a year and rates paid on a quarterly basis) into its monthly average.

 

As you are married, your spouse's income and capital will be treated as yours for calculating your financial resources (unless you and your spouse have already separated or divorced, or you and your spouse have conflicting interest in the proceedings). Please therefore remember to include your spouse's assets and income here.

 

Monthly Disposable Income (for single persons in Legal Aid applications)

 

The income and deductions are to be filled in on a monthly basis in this form. You therefore need to convert any amount that you receive or pay on a quarterly or yearly basis (e.g. year-end bonus to be received once a year and rates paid on a quarterly basis) into its monthly average.

 

Most criminal offences (Duty Lawyer Service)

 

Over 300 statutory and common law offences are covered under the Duty Lawyer Service's Standard List of Offences.

N

News activity (concerning personal data privacy)

 

According to section 61 of the Personal Data (Privacy) Ordinance , news activity means any journalistic activity and includes:

 

•the gathering of news;

•preparation of compiling of articles or programmes concerning news; or

•observations on news or current affairs,

 

for the purpose of dissemination to the public.

 

Nominee (for Individual Voluntary Arrangement)

 

This person can be the Official Receiver or anyone with suitable experience and qualifications in the opinion of the Court.

 

Notaries public

 

Notaries public are primarily concerned with the preparation and verification of legal documents for using abroad. They are internationally recognized.

O

Overtime pay

 

Overtime pay should be included in calculating the end of year payment, maternity leave pay, severance payment, long service payment, sickness allowance, holiday pay, annual leave pay and wages in lieu of notice if:

•it is of a constant character; or

•its monthly average over the past 12 months is not less than 20% of the average monthly wages of the employee during the same period.

P

Permanent partial incapacity (work-related injuries)

 

Such incapacity (or inability) that reduces your earning capacity, present or future, in any employment that you were capable of undertaking at that time.

 

Permanent total incapacity (work-related injuries)

 

Such incapacity (or inability) that permanently disables you from taking any employment that you were capable of undertaking before the injury.

 

Personal chattels of a deceased

 

According to section 2 of the Intestates' Estates Ordinance , "personal chattels" means:

  1. the following things situated at the time of the intestate's death (without a Will) at any residence of a surviving husband or wife of the intestate, namely furniture, clothes, articles of adornment, articles of household/ personal/recreational/decorative use, consumable stores (consumer goods), garden effects and domestic animals; and
  2. motor vehicles and accessories,

but does not include any chattel used exclusively or principally for business or professional purposes, or money or securities for money.

 

Pleadings in civil litigation

 

Pleadings are the court documents in which the plaintiff and the defendant set out all the important facts in order to support their case. These documents, whether prepared by the plaintiff or the defendant, have to be sent to both the other party and the court. The major items of pleadings are: statement of claim, defence, defence and counterclaim, and reply to defence.

 

Precedent partner

 

According to section 2 of the Inland Revenue Ordinance , "precedent partner" of a partnership business means the partner who, of the active partners resident in Hong Kong:

  1. is first named in the agreement of partnership; or
  2. if there is no agreement, is specified by name or initials singly or with precedence to the other partners in the usual name of the partnership; or
  3. is first named in any statutory statement of the names of the partners.
Presiding officer

 

The judge(s) sitting at the Labour Tribunal or the Lands Tribunal.

 

Prima facie case in criminal proceedings

 

Prima facie is a Latin expression meaning "at first sight". A prima facie case means that the evidence shown by the prosecution, if not successfully discredited by the accused person, is sufficient to prove the commission of the offence by the accused.

Q

Quasi-contract

 

A quasi-contract is formed without either a written or oral agreement between the relevant parties. The court, in view of the special circumstances, may still recognise and enforce the obligations arising out of such a contract in order to protect the injured party and to uphold justice. An example of quasi-contract can be found in the Wikipedia website . You should consult a lawyer before instituting any legal action in respect of a quasi-contract.

R

Recognizance

 

Recognizance is a promise or guarantee made by the accused (or another person) that the accused will comply with all the bail conditions during the period of bail. For example, the accused must report to a police station every day before commencement of the court hearing. If the accused breaches any of the bail conditions, the guarantor is liable to pay the sum as stated on the recognizance document. The accused will also be put on the list of wanted persons by the police.

 

Re-engagement (of a previously dismissed employee)

 

An order that requires the employer, the employer's successor or an associated employer to re-engage the employee in employment on terms comparable to the employee's original terms of employment or in other suitable employment.

 
Relevant court registries

 

Family Court Registry for matrimonial proceedings, Lands Registry for lands matters, District Court Registry for employees' compensation proceedings, and Probate Registry for grants of representation to estates of deceased persons.

 

Reinstatement (of a previously dismissed employee)

 

An order that requires the employer to treat the employee in all respects as if the employee had not been dismissed or as if there had been no variation of the terms of the employment contract.

S

Sample form (companies winding-up petition)

 

The petitioner, according to different cases, has to complete either Form 2, Form 3, or Form 3A as provided at the Appendix of the Companies (Winding-up) Rules for his/her winding-up petition. You may find samples of these forms at http://www.hklii.org/hk/legis/en/reg/32H/appendix.html.

 

Salaries or profits of Legal Aid applicants (single persons)

 

The disposable income is normally assessed by reference to the income reasonably expected to be received during the 12 months' period as from the date of the application for Legal Aid. The figures you filled in for the latest tax return should therefore NOT be adopted if there has been a change in the salaries or profits.

 

Salaries or profits of Legal Aid applicants (married persons)

 

The disposable income is normally assessed by reference to the income reasonably expected to be received during the 12 months' period as from the date of the application for Legal Aid. The figures you filled in for the latest tax return of you or your spouse should therefore NOT be adopted if there has been a change in the salaries or profits.

 

Statutory demand (for bankruptcy proceedings)

 

A document that states the details of the debt, the demand and the time limit for repayment. The creditor, according to different cases, has to complete either Form 162, Form 163, or Form 164 as provided at the Bankruptcy (Forms) Rules. You may find samples of these forms at http://www.hklii.org/hk/legis/en/reg/6B/sch.html.

T

Temporary incapacity (work-related injuries)

 

When an employee sustains an injury as a result of an accident arising out of and in the course of employment, and is granted a period of sick leave by a registered medical practitioner or a registered dentist, that period of absence from work is a period of "temporary incapacity".

 

Terminal payments (upon termination of employment)

 

They are statutory entitlements under the Employment Ordinance to which the employee is entitled but has not yet been paid (e.g. wages or payments in lieu of notice) and any other payments due to the employee under the employment contract.

 

The doctrine of precedent (Common Law)

 

Previous court judgments of similar cases in Hong Kong or other countries under the common law system will be recognized as authorities for the disposition of future cases.

 

Things in action

 

Owners/holders of "things in action", which includes cheques, debentures or share certificates, have the right to sue the defaulting parties (i.e. persons who issued the documents) if such documents were not honoured.

 

Topics (Duty Lawyer Service’s Tel-Law Scheme)

 

For details of the topics, please see thishttp://www.dutylawyer.org.hk/en/73.asp?category=tellaw/tel_law.

 

Trade description

 

With reference to section 2 of the Trade Descriptions Ordinance , "trade description" means an indication by whatever means, on the quantity, composition, method of production and fitness for purpose (function), with respect to any goods or parts of goods.

 

Trademark

 

With reference to section 3 of the Trade Marks Ordinance , "trade mark" means any sign which is capable of distinguishing the goods or services of one enterprise/company from those of other companies, and which is capable of being represented graphically.

 

Trespasser

 

A person who enters or occupies a property without permission from the property owner. Such conduct is illegal.

U

Undivided shares

 

When a developer sells individual units to individual owners, the owners jointly own the lot on which the building is situated with the developer and the other individual owners. Regarding the joint ownership of the lot, the individual owner is assigned a certain share of it. Under this arrangement, each owner owns a certain undivided share of the lot.

V

Vicarious liability

 

This liability arises when someone has to bear the responsibility/liability for other person's faulty action. A typical example is that the employer should bear the responsibility for his/her employee's error, even if the employer has not personally committed such an error.

W

Wage period

 

The period for which wages are payable. For example, employees are usually paid weekly or monthly according to their employment contracts. If the wage period is not specified on the contract, then it is deemed to be one month as per section 22 of the Employment Ordinance.

 

Want of prosecution (in civil litigation)

 

If the plaintiff fails to carry out the prescribed actions/steps to proceed with the case, the claim may be dismissed by the court (on application by the defendant). Examples include the plaintiff does not serve the statement of claim on the defendant or fails to comply with the obligation to disclose certain case documents to the defendant.

 

Winding-up petition

 

A document to be presented to the High Court for an application to grant a winding-up order against a limited company.

X

Y

Yearly Disposable Income (for married persons in Legal Aid applications)

 

The income and deductions are to be filled in on a yearly basis in this form. You therefore need to multiply any amount that you receive or pay on a quarterly or montly basis (e.g. monthly salaries and rates paid on a quarterly basis) into an annual amount.

 

As you are married, your spouse's income and capital will be treated as yours for calculating your financial resources (unless you and your spouse have already separated or divorced, or you and your spouse have conflicting interest in the proceedings). Please therefore remember to include your spouse's assets and income here.

 

Yearly Disposable Income (for single persons in Legal Aid applications)

 

The income and deductions are to be filled in on a yearly basis in this form. You therefore need to multiply any amount that you receive or pay on a quarterly or montly basis (e.g. monthly salaries and rates paid on a quarterly basis) into an annual amount.

Z