LLAW6259 Understanding Common Law

How LLAW6259 is assessed

Two official statements describe this assessment and both are set out here rather than one being chosen. The course outline states that this is a non-credit bearing course, that there will be an in-course oral assessment and an end of course written take home assessment to be completed within a week, that both will be marked on a pass or fail basis, and that you will need to pass both assessments. The written assessment instructions state that the written assessment counts towards eighty per cent of the marks and that the remaining twenty per cent was assessed by oral assessment during the course. Read together, the eighty and twenty are the internal weighting and the pass or fail is the grade you receive. The two numeric rows sum to 100. Confirm the current position on the course site before you plan your time.

Current LLAW6259 dates

Dates are as published in the assessment handout and the written assessment instructions for this offering, cross-checked against the submission points on the course site. Confirm exact deadlines and submission settings in the live LMS.

What LLAW6259 covers

Ten chapters follow the published seminar sequence, from the common law system and the sources of Hong Kong law through precedent, judgments, Ordinances, statutory interpretation and legal research to reasoning, issue identification and the written advice itself.

The published outline describes it as a skills-based course rather than a knowledge-based one, designed to run parallel with and support learning in other subjects such as Contract and Tort, and the questions used in class are drawn from areas being studied in those courses.

It is specifically designed for Mainland students on the Master of Common Law programme, learning the common law in the English language.

Ten seminars across two weeks, in two different formats

Teaching takes place over fifteen hours in ten seminars of an hour and a half, all delivered face to face.

Four of them provide an overview or introduction to a topic; the other six involve activities built around problem questions. The overview handouts are described as introductory outlines that students are expected to expand on in the seminar and add to from their own understanding, so arriving with the handout alone is arriving with a skeleton.

The activity seminars are interactive and include problem-solving, small group work and student presentations based on questions provided in advance, and students should expect to write answers in class either in a group or alone.

Eight areas, and why they are sequenced that way

The course concentrates on eight areas: an introduction to the common law, analysing a statute, analysing a case, legal sources and an introduction to legal research, legal reasoning and IRAC, analysing a problem question, effective legal writing, and improving your answers.

The order is not arbitrary. The first four supply the raw materials, since you cannot argue from an authority until you know whether it is part of the law here and which part of it binds.

The last four turn those materials into an answer, and they are treated as separate skills because they fail separately: a student who cannot identify issues will produce an elegant answer to the wrong question.

What the assessment actually measures

There is no examination.

There is an in-course oral assessment and an end-of-course written take home assessment, completed within a week, and both are graded on a pass or fail basis. The written assessment is one problem question of the kind worked in the seminars, answered in not more than one thousand two hundred and fifty words, using IRAC, and ending in advice.

Its published criteria fall into two groups, writing skills and legal analysis, and the word all appears three times in the second group: identify all the issues, analyse all the issues, conclude on all the issues.

No set textbook, and what that means for preparation

The course sets no textbook.

Reference is made to books students may wish to consult for further study, and since the course draws on Contract and Tort issues, the textbooks used in those subjects are the natural companions.

Materials are distributed through the course site and in class: the learning outcomes and course outline, the course schedule, the overview handouts, the seminar activity handouts setting out required reading and questions, and the relevant cases and Ordinances themselves. That last category is the one to work with hardest, because the skill being assessed is reading primary law rather than remembering a summary of it.

Worked example · free

Turn a set of facts into a numbered issue list

Key terms

Ordinance

Legislation enacted by the Legislative Council of Hong Kong. The equivalent instrument in the United Kingdom is an Act of Parliament, so using Act for a Hong Kong instrument is wrong.

Subsidiary Legislation

Any proclamation, rule, regulation, order, notice or other instrument made under or by virtue of an Ordinance and having legislative effect, as defined in the Interpretation and General Clauses Ordinance.

Ratio Decidendi

The part of a decided case that binds later courts: a ruling on a point of law that the outcome of the case depended on. Both limbs are required, and the judge does not label it.

Obiter Dictum

A statement of law made in a judgment that was not crucial to the outcome. It may be highly persuasive and it never binds.

Binding Authority

A decision a later court must apply because the deciding court sits above it in the same judicial hierarchy, or because the court is bound by its own earlier decisions.

Persuasive Authority

A decision a court may adopt because it finds the reasoning convincing, rather than because it is obliged to. Overseas decisions fall here however distinguished the court.

Invitation To Treat

A step inviting offers rather than making one. A display of goods with a price in a shop window is the standard example, and the distinction decides several problem questions.

Purposive Approach

Reading a provision for what the legislature meant, as that meaning shows itself in the enacted words, and construing those words with regard to context and purpose rather than turning to purpose only once an ambiguity appears.

Eiusdem Generis

A rule of construction: where a provision names several specific things and then adds a broad catch-all, the catch-all reaches only things of the same class as the specific ones.

IRAC

The reasoning structure this course teaches, applied to each issue separately: state the Issue, state the Rule with its authority, Apply the rule to the facts, and Conclude on that issue.

Problem Question

An assessment format setting out a factual scenario and asking for advice, rather than asking for discussion of a proposition. The answer is structured by issues, not by topics.

Neutral Citation

A citation independent of any published law report, identical in print and online, giving the year, the court and the number of that judgment in that year rather than a page.

LLAW6259 FAQ

Questions students ask in each LLAW6259 chapter

Does English law still apply in Hong Kong?

Only in a narrow and dated sense. English legislation and case law came across as law here only as it stood before 5 April 1843, and only so far as applicable to local circumstances and not modified by local legislation, with pre-1843 English statutes reaching us through a list in the Application of English Law Ordinance 1966. Everything English after that date is not law here at all. It can still be used, because Article 84 permits the courts to refer to precedents of other common law jurisdictions, but referring is not following. Chapter 01 · The Common Law System and the Laws of Hong Kong

How do I find the ratio if the judge does not say what it is?

By working out which determination of law the outcome could not survive without. The test has two limbs: the court ruled on a point of law, and the outcome could not have stood without that ruling. In practice you read the statement of facts, identify which facts the holding relied on, and then ask of each legal proposition in the judgment whether removing it would change who won. Where there is more than one judgment, the ratio comes from the majority judgments taken together rather than from whichever one you read first. Chapter 02 · Precedent, Ratio, Obiter and Binding Force

Are English cases binding in Hong Kong?

No, and they never were. The House of Lords and the English courts have never formed part of the Hong Kong judicial hierarchy, and precedent operates only between courts within one system. Before 1 July 1997 House of Lords decisions stood in a similar position to Privy Council decisions on non-Hong Kong appeals: persuasive only, though of very great authority unless local circumstances made it appropriate for Hong Kong to develop along different lines. The right submission is about persuasive weight, and the right response to it is an argument about reasoning. Chapter 03 · Court Hierarchies and Overseas Authority

Can I cite the headnote of a case?

No. The headnote is written by the reporter rather than by the court, so it is a summary and not a judicial statement, and it is certainly not the ratio. Use it for what it is good at, which is navigation: it tells you quickly what the case decided and roughly where in the judgment the relevant passage lies. Then go to that passage in the judgment itself, quote it, pinpoint the page or paragraph and name the judge who said it. Chapter 04 · Reading a Reported Judgment

Is an Ordinance in force as soon as it is signed?

No. Signature by the Chief Executive turns the Bill into an Ordinance and requires promulgation, but commencement is a separate question. An Ordinance takes effect either on publication or on a later date notified in the Gazette or stated in the Ordinance itself. Treating signature and commencement as the same event is how a candidate applies a provision to facts that predate it, which is an error the application provision of the Ordinance itself will usually expose. Chapter 05 · How an Ordinance Is Made and Laid Out

Which interpretation rule should I use in an answer?

Start by saying why an approach is available rather than which one you prefer. The literal rule operates where the words are clear, the golden rule where the meaning is ambiguous, the mischief rule where it is not clear, and the purposive approach throughout. In practice a strong answer works through the Ordinance's own interpretation section, then the general interpretation Ordinance, then the words in their natural meaning read in the context of the whole statute and its purpose, and reaches the presumptions last. Chapter 06 · Statutory Interpretation: Rules, Aids and Presumptions

What is the difference between a primary and a secondary source?

A primary source is the law itself: an Ordinance, subsidiary legislation, or a case, whether it interprets legislation or supplies precedent where there is none. A secondary source is commentary about the law. The distinction is about role rather than quality, so an excellent textbook is secondary and a weak first instance judgment is primary. You use secondary sources to learn an area quickly and to find the authorities, and you cite the authorities. Chapter 07 · Finding the Law: Sources and Research Routes

What does IRAC actually stand for and how is it used?

Issue, Rule, Application, Conclusion, and it is applied to each issue rather than to the problem as a whole. State the issue as a question. State the rule as a proposition of law together with its authority. Apply that rule to the facts of the particular problem. Conclude on that issue. Then run it again for the next issue on your list. A problem with five issues produces five runs and five mini conclusions, and the overall conclusion is built from those. Chapter 08 · Legal Reasoning with IRAC

How do I make sure I have found every issue?

By working from a list rather than from the facts. The general checklist tells you which areas of the subject the facts might engage, and the specific checklist under each of those tells you which rules within the area might be relevant. Reading a problem without a checklist means finding the issues you happen to remember, which is why two students given the same facts can produce answers of very different completeness while both feeling confident. Chapter 09 · Identifying the Issues in a Problem Question

How should I structure a problem question answer?

In three parts. The introduction stays short, names what you are being asked to advise on, notes any restriction and sets out the issues, using facts rather than opinions and asking for nothing. The body names the parties and the causes of action and runs IRAC on each issue, weighing both sides and dealing with any defence, counterclaim or remedy plus whatever further information is needed, and closing each issue with its own conclusion. The last part gathers those into one overall conclusion answering the question actually asked. Chapter 10 · Writing to Advise: Structure, Clarity and Precision

How to prepare for the assessments

Build the two checklists before you need them. A general list of the areas in contract and in negligence, then a specific list of the rules under each matter, written in your own hand from your Contract and Tort materials.

Then practise the sequence rather than the subject: take an unseen fact pattern, spend ten minutes producing a numbered issue list with the checklist open and the textbook shut, allocate words across the issues, and only then write. Do that three times and the written assessment becomes a familiar procedure applied to unfamiliar facts, which is exactly what the course is training.

Finish by auditing a draft against the nine published criteria one at a time, because several of them, spelling, conciseness and a conclusion on every issue, are checkable in minutes and are where answers quietly lose their pass.

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