Anfield Tam on The requisite intention for constituting a Quistclose trust (Trusts & Trustees)

"The requisite intention for constituting a Quistclose trust"
Anfield Tam (PCLL student)
Trusts & Trustees
Published online: January 2025

Abstract: In China Life Trustees Ltd v China Energy Reserve and Chemical Group Overseas Co Ltd [2024] HKCFA 15, the Hong Kong Court of Final Appeal clarified that a positive intention for the transferor to retain beneficial interest in the transferred assets is not necessary for a Quistclose trust to arise. Rather, it suffices when the parties intended the transferred assets to be used exclusively for a specific purpose, such that it is not at the transferee’s free disposal. This note appraises the decision for disentangling the conceptual nuances between these two types of intention. The Court rightly held that the transferor’s retention of beneficial interest is merely a legal consequence of the restrictive intention, as on a correct reading of the authorities such retention need not be intended for a Quistclose trust to arise.

Daniel Bell on China in the Year 2050: A Look Backwards (Society)

"China in the Year 2050: A Look Backwards"
Daniel A. Bell
Society
Published online: January 2025

Abstract: This article discusses China’s political history from 2025 to 2050. In 2025, there was strong support for the political system due to measures that curbed corruption, reduced pollution, and alleviated poverty, but intellectuals felt stifled by increased repression. From 2025 to 2035—known as China’s “Lost Decade”—China’s economy worsened and relations with the USA further deteriorated, nearly leading to war. The next fifteen years—known as China’s “Golden Age”—saw unparalleled prosperity, an open and pluralistic political system, the setting up of the East Asian Union, and sustained cooperation with the USA to deal with global challenges. Nobody knows what will happen after 2050, but we need optimistic and realistic political scenarios to inspire change for the future.

Jedidiah Kroncke on An Empire of Anti-Democracy: The Imperial Legacies of American Territorial Labor (WLR)

"An Empire of Anti-Democracy: The Imperial Legacies of American Territorial Labor"
Jedidiah J. Kroncke
Washington Law Review (Vol. 99, No. 4 (2024))
Published online: January 2025

Abstract: A great deal of recent attention has been given to acknowledging the full historical scope of American empire and its legal foundations. A recurrent focus of this attention has been the impact of the Insular Cases—a set of early twentieth century doctrines that legitimate American territorial acquisitions while denying their full incorporation under the United States Constitution. Issues of political citizenship and property have thus predominated critical work on the Insular Cases.

This Article expands on this resurgent interest by focusing on another critical element of this acknowledgment: the history of territorial labor which has long been central to the political economy of American empire. Explicating the role and regulation of territorial labor enables a more complete picture of American empire and centers its evolving pursuit of new legal forms to project national power while avoiding democratic accountability.

Most concretely, the unprincipled doctrines of the Insular Cases have led to a paradigm of perpetually precarious bargaining in which territorial labor only enjoys the formal protection of labor and employment law subject to complete federal discretion and potential revocation. Mapping the diverse and contingent legal regimes this bargaining has produced unearths all too many tragedies past and present as the largely invisible labor of territorial people has been circulated throughout American empire while building its economic and military foundations.

Further complicating this formally inchoate set of rights are the practical realities territorial labor has historically been subject to under conditions of American empire: localized employer domination, tactics of racialized labor migration, and the overshadowing anti-democratic disciplinary rationales of U.S. national security. These realities are evident throughout the diverse range of contemporary territories as well as in their scarring effects within former American territories and military occupations. Moreover, imperial labor’s roaming logics of dehumanization are today increasingly displaced onto even more vulnerable foreign migrant workers within many territories themselves.

Acknowledging the role of territorial labor in American empire blurs the line between territorial and incorporated life and law. Most powerfully, it reveals how the conditions of territorial labor reflect back the enervated nature of American economic citizenship writ large. This reflection is just one of the many ways in which territorial history presents lessons increasingly applicable to broader swaths of American life under conditions of modern economic globalization. The Article ultimately integrates territorial history into renewed demands for a democratic political economy for all those living under American sovereignty.

Gary Meggitt on The Changing Landscape of Professional Liabilities (New book chapter)

"The Changing Landscape of Professional Liabilities"
Gary Meggitt
in Insurability of Emerging Risks: Law, Theory and Practice, edited by Baris Soyer and Özlem Gürses (Bloomsbury Publishing, January 2025), Chapter 11, pp. 233 - 254
Published in January 2025

Introduction: Once upon a time, it was relatively easy to identify who was ‘a professional’ . As the authors of Jackson & Powell on Professional Liability put it, ‘the occupations which are regarded as professions have four characteristics’ . These are the ‘mental’ rather than ‘manual’ nature of their work; the ‘moral’ or ‘societal’ aspects of their role; the existence of collective organisations to which they belong and which oversee their activities; and the elevated social status which they enjoy.

Those characteristics are passing into history. Professionals’ work may still be mental rather than manual, but the quality of their work is no longer ‘judged’ by their professional peers but by the managers of the corporate entities in which they are now often employed. Moreover, emerging technology, including artificial intelligence (AI), presents an even greater challenge. Can a ‘bot’ be a barrister ? If not, why not ? If an architect uses AI to design a building and that design is defective, who is to blame ? The architect or the AI or the AI’s developer ? If the design is superlative, who takes the credit ?

The demise of traditional partnerships and the ‘commercialization’ of their practices has exacerbated the tensions between professionals’ disparate ethical duties to their colleagues, clients and the wider community. The supervisory role of collective organisations such as national law societies has been diluted by the growth of statutory regulatory bodies and, in the view of some, sidestepped by multinational professional service firms. Finally, professionals’ supposed social status has been all but eradicated by the public’s disinclination to defer to their ‘betters’. This is reflected, most importantly for professional indemnity (PI) insurers, in the growth of claims against professionals for both their own alleged misconduct and in ‘facilitating’ the misconduct of others.

This chapter addresses the changing nature of the work, obligations and regulation of professionals by reference to the ‘four characteristics’ in Jackson & Powell. It considers the possible risks that may be brought about by these changes. It discusses the need for policyholders and insurers to familiarise themselves with these risks and to address them when it comes to their practices (in the case of the former) and underwriting, claims management possible development of alternative forms of cover (in the latter’s case). Although this chapter focuses on legal professionals (so as to keep it to a manageable length) it touches upon the experiences of other professions where appropriate. Finally, although it concentrates on developments in the UK, it does not neglect those in other significant jurisdictions.

Kelvin Kwok on An Autonomy Theory of Consumer Protection Law (Antitrust Law Journal)

"An Autonomy Theory of Consumer Protection Law"
Kelvin Kwok
Antitrust Law Journal, Volume 86, Issue 2 (2024) pp. 411-472
Published online: December 2024

Abstract: This article sets forth a new autonomy theory of consumer protection law (CPL), drawing on Joseph Raz’s framework on personal autonomy and explicating the relationship between CPL interventions and the independence, rationality, and opportunity dimensions of autonomy. It seeks to contrast the autonomy perspective on freedom of choice and the corresponding role of CPL with the prevailing welfarist perspective, arguing that the autonomy perspective should be preferred because it better fits the function of CPL than the welfarist perspective, apart from resting firmly on the value of personal autonomy. It proceeds to explore the autonomy-based functions of CPL with regard to choice facilitation, choice enhancement, and choice limitation. The article argues that, as compared to the welfarist perspective, the autonomy perspective can more persuasively explain the need for a holistic approach to choice enhancement and the value of eco-friendly options, as well as the regulatory preference for choice facilitation over choice limitation in choice overload and complexity situations.

Please click here to read the full article on Antitrust Law Journal.

Please click here to read the full article on SSRN.

Massimo Lando on Baseline Preservation as a Response to Sea-Level Rise (Ocean Development & International Law)

"Baseline Preservation as a Response to Sea-Level Rise"
Massimo Lando
Ocean Development & International Law
Published online: January 2025

Abstract: To combat the adverse effects of climate-change-driven sea-level rise, an increasing number of states have started preserving baselines. In this context, preservation means making baselines permanent despite changes to the coastline resulting from sea-level rise. In 2023, the International Law Commission’s Study Group on Sea-level rise in relation to international law released its Additional Paper on the impact of sea-level rise on the law of the sea. The Additional Paper focused on the states’ views concerning the possibility of preserving baselines irrespective of coastal changes caused by sea-level rise. However, the Additional Paper did not include a convincing methodological framing of the question of baseline preservation. This article frames this question as one of custom formation or treaty interpretation, arguing that neither framing would allow one to conclude that positive international law sanctions the preservation of baselines, but that there are viable solutions de lege ferenda to achieve it.

Lucien J. van Romburg on Digital Finance and Regulatory Competition: Regulating Distributed Ledger Technology-Based Financial Products and Services (Wolters Kluwer)

Digital Finance and Regulatory Competition: Regulating Distributed Ledger Technology-Based Financial Products and Services
Lucien J. van Romburg (PhD 2023)
Wolters Kluwer
Publication date: 18 November 2024

Overview: This is a book addressing the question of whether the world’s leading financial centres – Hong Kong, London, and New York – engaged in regulatory competition with one another through their formulation of the rules to govern distributed ledger technology (DLT)-based financial products and services in their respective jurisdictions during the period 2008-2022. In light of this, the book furnishes a clear and cohesive framework to understand the influence of regulatory competition in the world’s major financial centres, utilising a narrative lens built on a comparative study of legal, regulatory, and policy instruments. The outcome is an exhaustive and thought-provoking analysis which distils observations regarding the regulation of DLT-based financial products and services and the potential implications for the future regulation of other novel technologies in the financial services industry.

More details are available here.

Douglas Arner and Christine Wang on Bigtechs and the Emergence of New Systemically Important Financial Institutions: Lessons from the Chinese Experience (EILR)

"Bigtechs and the Emergence of New Systemically Important Financial Institutions: Lessons from the Chinese Experience"
Christine M. Wang, Douglas W. Arner
Emory International Law Review (Vol. 39,  Iss. 1 (2024))
Published online: December 2024

Abstract: Over the past two decades, the emergence of giant technology firms (Bigtechs) has disrupted the traditional way that financial markets operate. These technology giants have leveraged network effects, massive amounts of data, and extensive customer bases to expand into the financial sector and rapidly achieve economies of scale and scope. The expansion of Bigtechs into finance has reinforced the pre-existing trends of digitalization and datafication in finance, which has evolved into a new era of the platformization. With a substantial presence in financial markets, the development of digital finance platforms has enormous potential for enhancing financial inclusion, efficiency and sustainable development. Despite these benefits, there are also many issues and risks in relation to their involvement in financial services, such as the emergence of new “too-big-to-fail” and “too-connected-to-fail” problems and the development of new systemically important financial institutions (SIFIs). In this context, the question is how policymakers and regulators, along with industry and consumers, can effectively leverage the benefits of the platformization of finance while mitigating its risks and negative impacts.

This article focuses on the experience and lessons learned from China, in particular, as it has been a pioneer in the platformization of finance. As the potential problems arising from Bigtechs’ market dominance and economies of scale have become increasingly prominent, they have become the focus of a multi-pronged response from the Chinese government, particularly from the second half of 2020. In the context of digital finance, risks involved in platform-based and highly interconnected financial activities are being addressed via multiple areas of law, including finance, competition and antitrust, data protection and cybersecurity. Based on the Chinese experience, the broad cross-sectoral and rapidly evolving nature of Bigtech businesses requires a reconsideration of the complex interaction between different government policies and regulatory objectives.

Drawing from the lessons of China’s experience, this article frames a number of strategies and recommendations for other jurisdictions that are exploring ways to regulate the emergence of the platformization of finance. Firstly, due to the rapidly evolving nature of Bigtech businesses, it is important to develop regulatory mechanisms that allow for timely review and adaptation to facilitate understanding of innovative financial services before risk events occur. Secondly, the exclusive control of customer data by Bigtechs is likely to undermine competition in financial markets, thus requiring effective data sharing mechanisms, such as Open Finance initiatives, to break data monopolies. Furthermore, given their combination of network effects and economics of scope and scale, digital finance platforms are in increasing cases becoming systemically important. There is a need for both activity-based and entity-based regulations to address risks involved in the interconnected financial businesses of these new SIFIs.

Kung Hey Fat Choy 2025

 HKU Legal Scholarship Blog wishes everyone a Happy Chinese New Year 2025.

Thank you to Richard Cullen for drawing and sharing his traditional annual cartoon to mark

The Year of the Snake.

HKU Law Welcomes Ms. Lea-Anne Lee

Welcome to Ms. Lea-Anne Lee, who joins the Faculty of Law as a Senior Lecturer.

Lea-Anne graduated from University College London and obtained her Postgraduate Certificate in Laws at the University of Hong Kong. She was admitted as a solicitor in England and Wales and Hong Kong.

During her extensive private practice with Hogan Lovells, Clifford Chance and Freshfields in London and Hong Kong, she specialised in advising financial institutions on mergers and acquisitions and financial laws and regulations. Her clients included the full spectrum of participants in financial services including retail and investment banks, insurers, asset managers, fund houses, brokers and intermediaries.

Since the Global Financial Crisis in 2008, Lea-Anne undertook various senior management roles in house advising on domestic and cross border legal, compliance and regulatory aspects on restructuring, business controls and risk management for various international financial services operations in Asia Pacific (covering China, Hong Kong, Singapore, Japan, Korea, India, Taiwan, Australia as well as various South East Asian countries), including ABN AMRO, Credit Suisse/UBS and Bank of China (Hong Kong) Limited. She was responsible for navigating regulatory affairs and handling critical and large scale interactions with domestic regulators and international college of supervisors.

At the University of Hong Kong, her main focus of teaching is on financial laws and regulations. She looks forward to sharing her deep experience on the financial industry’s practice and compliance issues.

Yi Tang on Charting a New Legal Order: ASEAN’s Arbitration Reform in Taming the “Unruly Horse” of Public Policy Exception (Chinese (Taiwan) Yearbook of International Law and Affairs)

"Charting a New Legal Order: ASEAN’s Arbitration Reform in Taming the “Unruly Horse” of Public Policy Exception"
Yi Tang (PhD Candidate)
Chinese (Taiwan) Yearbook of International Law and Affairs, Volume 41, 2023, pp. 112-156
Published online: December 2024

Abstract: In light of the critical role of arbitration in resolving international commercial disputes within the rapidly developing and integrating ASEAN economies, this study investigates the interpretation and application of the public policy exception, a major factor in the enforcement of foreign arbitral awards, across ASEAN’s diverse legal jurisdictions. It critically assesses how different ASEAN countries, each at varying stages of arbitration development, approach this exception. It highlights the differences in interpretation, with more developed jurisdictions adopting a narrower approach, contrasting with broader interpretations in less developed ones, thus revealing a correlation between a jurisdiction’s level of arbitration development and its approach to the public policy exception. This study also observes a possible trend towards greater coherence and uniformity in recent arbitration reforms across the region. Despite the challenges in harmonizing the public policy exception regionally, it argues for a uniform and narrow interpretation, aligning with international standards to enhance ASEAN’s attractiveness for cross-border business and investment.

Sida Liu and Anson Au on Mobility Spaces: Geographical and Professional Distances in Career Mobility (JABS)

"Mobility Spaces: Geographical and Professional Distances in Career Mobility"
Sida Liu and Anson Au
Journal of Applied Behavioral Science
Published online: December 2024

Abstract: This article introduces the novel concept of “mobility spaces” to investigate the role of geographical and professional distances in career mobility and how they are influenced by social structural factors. Mobility spaces encompass physical, social, and legal spaces that professionals navigate while shaping their career trajectories over time. The study focuses on the movement of professionals across mobility spaces and examining the constraints and opportunities affecting their career paths. Using empirical data on the mobility of Hong Kong law firm partners from 1994 to 2021, the article demonstrates that social structural factors such as gender, race and ethnicity, firm origins, and firm prestige significantly influence the geographical and professional distances that professionals manage to traverse in their career moves. The mobility spaces theory aims to use space to contextualize the interplay between individual and macrostructural factors in shaping professional career outcomes.

HKU Awards for Research Excellence 2023-24

Congratulations to all Faculty of Law colleagues who were recognised in HKU Awards for Research Excellence 2023-24:

Outstanding Researcher Award 2023-24
Thomas Cheng

Outstanding Young Researcher Award 2023-24
Zhuang Liu

University’s Research Output Prize 2023-24 (Faculty of Law)
'The Governance of Chinese Charitable Trusts'

By Hui Jing, published by Cambridge University Press in September 2023

More details of the HKU Awards for Research Excellence can be found here. 

Adrian Kuenzler on Regulatory Diffusion Beyond Digital Empires – Searching for a Resilient Competition Law Framework (GRUR International)

"Regulatory Diffusion Beyond Digital Empires – Searching for a Resilient Competition Law Framework"
Adrian Kuenzler
GRUR International
Published online: December 2024

Extract: Regulation has had a resurgence across many jurisdictions of late, with digital platforms being distinct new objects that need to be addressed. The emergence of this new regulatory object is part of a global – and vital – tendency toward reassessing tech power and state sovereignty. However, there are considerable differences in how digital platforms are dealt with across jurisdictions. The European Union, the United States, and China have each adopted their own regulatory approaches, ranging from rights-based to market- and state-driven models. While this has led to concerns about regulatory fragmentation and increased costs for consumers, considerable uncertainty also remains regarding how to regulate, identify, and adopt the most suitable regulatory approach.

A largely underappreciated aspect of this debate is the rapid process of regulatory diffusion – the adoption of substantially similar rules – in different jurisdictions beyond the major digital empires. Examples include the member states of the Association of Southeast Asian Nations and its trading partners, where a shift from an ex post to an ex ante regulatory approach in competition law is underway, with the Digital Markets Act (DMA) emerging as a blueprint that different countries customize to fit their digital ecosystems and domestic policies.

Shahla Ali on Conciliation Beyond the Courts – Aspirations and Limits of Mandated and Voluntary Court Mediation Programmes From a Multi-Jurisdictional Perspective (CPLJ)

"Conciliation Beyond the Courts – Aspirations and Limits of Mandated and Voluntary Court Mediation Programmes From a Multi-Jurisdictional Perspective"

Shahla Ali

in Comparative Procedural Law and Justice, edited by B Hess,M Woo,L Cadiet,S Menétrey, and E Vallines García (CPLJ Part XV Chapter 2)

Published online: November 2024

Introduction:

As judicial systems advance, evolving conceptions of justice are reflected in varying emphasis on the role, place and practice of conciliation beyond civil courts. How such programmes provide opportunities for party-directed reconciliation on the one hand while ensuring access to formal legal channels on the other remains an area of continued enquiry. The question this section seeks to explore is what drives the development of a nation’s particular approach to its court mediation system, whether voluntary or mandatory. How important is party choice in the success of court-connected mediation programmes? Given that ‘public means available for financing dispute resolution are not unlimited,’ a balancing of individual process choices and social efficiency requires careful investigation. Variation among such programmes in diverse societies reflects, to a large extent, distinct approaches to individual and collective responsibility for the financial, social and temporal resources required for resolution. In some jurisdictions, the design of court mediation structures may align with a view of conciliation as the mainstream, normatively preferable, rather than an ‘alternative’ approach to the resolution of disputes. In others, individual rights, protections, and choices are prioritized, with parties given the option to decide whether to engage in conciliation processes. The first part of this paper explores the motivations behind varying court mediation programme designs, voluntary or mandated, and the relative benefits, challenges and implications of such design choices. Examples of jurisdictions in which mediation has long been considered mainstream are explored to understand continuities in court-connected mediation programmes. This is followed by a discussion of comparative survey findings examining the impact of judicial mediation structure (mandated or voluntary) on perceptions of justice, efficiency and confidence in courts in ten jurisdictions.

Please click here to read the full text.

Taorui Guan on Collaborative Protection of Intellectual Property (University of Pennsylvania Journal of International Law)

"Collaborative Protection of Intellectual Property"
Taorui Guan
University of Pennsylvania Journal of International Law, Vol. 46 (2024), Issue 2
Published online: January 2025

Abstract: What constitutes the optimal approach to intellectual property (“IP”) protection? The mainstream method, prevalent in many countries, including the United States, is a court-centric model. In contrast, in response to heightened international innovation competition, China adopted an expansive collaborative protection model. This groundbreaking approach extends beyond governmental bodies, such as courts and administrative agencies, to non-governmental entities like private actors, social organizations, and educational institutions.

This paper offers a comprehensive analysis of China’s collaborative protection model, including its policies, legislation, and practical applications. It incorporates literature from public administration and administrative law on collaborative governance to dissect the model’s essence. It suggests that this model allows collaboration among diverse entities to integrate resources and information, aiming to achieve more effective IP protection.

The paper highlights the theoretical implications of the collaborative protection model on the dual nature of the IP system. As a property system, the emergence of the collaborative model implies that relying largely on courts might not offer optimal protection for IP, given its nonrivalrous and non-excludable nature. The pluralistic nature of collaborative protection enhances accessibility, diversity, and timeliness in IP protection, despite challenges like interest divergence, insufficient incentives, and rising costs. As a system of innovation regulation, the model reveals that states can improve the granularity of their innovation incentives through diverse enforcement institutions. While this approach complicates the IP framework, its adaptability in varied innovation scenarios might offset the intricacies, presenting a viable supplement to traditional innovation incentive regulation based on the structure of IP rights.

Anaïs Mattez on Indigenous Advocacy and the Compliance Mechanisms of the World Heritage Convention: a TWAIL Reading (International Journal of Cultural Property)

"Indigenous Advocacy and the Compliance Mechanisms of the World Heritage Convention: a TWAIL Reading"
Anaïs Mattez (PhD 2025)
International Journal of Cultural Property, First View, pp. 1 - 18
Published online: December 2024

Abstract: This article examines how Indigenous Peoples who depend on World Heritage sites for their culture and livelihood can appeal to the Committee when State Parties fail to comply with their obligations. While scholars criticize the World Heritage Convention for the lack of participation of Indigenous Peoples, particularly in the inscription and management processes, the framework of the Convention also allows representation and visibility. Indeed, compliance mechanisms offer opportunities for Indigenous advocates to negotiate Land sovereignty and environmental protection. TWAIL, which places the worldview of Indigenous Peoples at the center of legal practice, is crucial to understanding the interactions between Indigenous Peoples and the 1972 UNESCO Convention. TWAILers highlight how international law historically denies sovereignty rights to Indigenous Peoples. Article 6(1) echoes this absence of sovereignty. This article examines three cases in which Indigenous advocates petition to protect Native Lands against environmental degradations and colonization: Kakadu, Wood Buffalo, and Uluru. Ultimately, the challenges of Indigenous activists in their quest to preserve nature and culture reveal that the absence of sovereignty prerogatives remains a substantial issue. While the Convention provides a venue for advocacy and international awareness, Indigenous Peoples still must negotiate Land autonomy and cultural sovereignty with the State.

Michael Ng awarded honorable mention of the ISCLH 2024 Biennial Book Prize

Congratulations to Michael Ng (吳海傑), whose book Political Censorship in British Hong Kong: Freedom of Expression and the Law (1842–1997) was awarded the honorable mention of the International Society for Chinese Law & History (ISCLH) 2024 Biennial Book Prize. The book was published by the Cambridge University Press in September 2022.

    Background on the prize: The International Society for Chinese Law and History (ISCLH) has established a biennial book prize for the monograph that has been published in the previous two years and made a major and unique contribution to improving understanding of Chinese law and history. Eligible monographs shall be based on original research on Chinese law in history, historical works with extensive and substantial legal analysis, or historically grounded legal studies comparing China and another society. For more information on the book prize, click here.

Trevor Wan on Contesting Collateral Challenge: HKSAR v Chow Hang Tung (2024) 27 HKCFAR 71 (Judicial Review)

"Contesting Collateral Challenge: HKSAR v Chow Hang Tung (2024) 27 HKCFAR 71"
Trevor Wan
Judicial Review
Published Online: December 2024

Introduction: 

1. A collateral challenge exposes to legal scrutiny a public law act or decision in proceedings the primary object of which is not to impugn the validity of that act or decision. The public law challenge, rather, is ‘collateral’, ‘indirect’, or ‘incidental’ to the main issue under determination, which may be the liability or guilt of the defendant. As a collateral challenge is asserted outside the parameters of conventional judicial review, it is neither subject to nor encumbered by the procedural peculiarities that underpin the latter, thus rendering it an ‘exception’ to the well-recognised rule of procedural exclusivity in O’Reilly v Mackman. In the criminal context, a collateral challenge typically contests a public law act, the lawfulness of which constitutes an essential ingredient of the offence with which the defendant is charged, relying on for example the familiar grounds of illegality, irrationality, and procedural impropriety. If successful, the collateral challenge will undermine the prosecution’s case and potentially lead to an acquittal.

2. The doctrine of collateral challenge was recently considered by the Hong Kong Court of Final Appeal (CFA), the apex court of the jurisdiction, in HKSAR v Chow Hang Tung. In a split decision by a narrow margin of three-to-two, a majority of the CFA reaffirmed the principles governing the availability of collateral challenge in criminal proceedings laid down in R v Wicks and Boddington v British Transport Police, which are rooted in statutory interpretation. Furthermore, the CFA explicitly recognised a discrete category of collateral challenge, where the challenge stems not from statutory non-compliance or conventional public law grounds (i.e. ordinary collateral challenge), but incompatibility with constitutional provisions in the Basic Law and Hong Kong Bill of Rights, the Special Administrative Region’s statutory charter of rights incorporating the International Covenant on Civil and Political Rights (i.e. constitutional collateral challenge).

3. While the defendant in the end fell short of escaping conviction, the judgment...

(Click here to read the full article)

New Book: Archbold Hong Kong 2025 (Sweet & Maxwell)

ARCHBOLD HONG KONG 2025
Editor-in-Chief: The Hon Mr Justice Bokhary
General Editor: Professor Simon Young
Sweet & Maxwell
October 2024

Preface by the General Editor

The Safeguarding National Security Ordinance (Ord. No. 6 of 2024) (“SNSO”) entered into force on 23 March 2024, only 15 days after the bill was read the first time in the Legislative Council. The SNSO adds 121 new provisions to our criminal law and amends/repeals 94 provisions across 28 Ordinances, including subsidiary legislation. Naturally, the changes brought about by the SNSO figure prominently in some of the chapters in this year’s volume, especially in Chapter 26 (National Security). Going forwards, legal updates in national security law will be captured in Chapter 26, except for those relating to sentencing (Chapter 5), proceeds of crime and production orders (Chapter 41), and other police powers (Chapter 15), which will be captured in the respective chapters indicated. I am grateful to the contributing editors of these and other chapters for their efforts in updating Archbold Hong Kong to reflect these new changes.

The SNSO fulfils the Hong Kong Special Administrative Region’s duty to enact laws on its own to prohibit seven types of national security threats, as mandated by Article 23 of the Basic Law. The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”) of June 2020 covered two of those prohibitions (i.e. secession and subversion) and added new crimes to address terrorist activities and collusion with a foreign country or external element. The SNSO completes the national security ecosystem by modernising previous offences (e.g. treason, misprision of treason, unlawful drilling, incitement to mutiny or disaffection, sedition, and offences in connection with state secrets and espionage), adding new ones (e.g. insurrection, sabotage, acts in relation to computers and electronic systems, external interference, disclosing a national security investigation, harassing persons handling national security cases/work), and conferring new executive powers to prohibit organisations endangering national security.

Perhaps the most controversial aspects of the SNSO are the departures from procedural norms that apply to other offences (e.g. extended detention of arrested person, restricted access to legal representative, movement restriction orders of persons on bail, disregarding 8-day rule on remand, translation of statements and exhibits only by order of magistrate, dispensing with preliminary inquiry, no section 16 discharge, anonymity measures). Those convicted of offences endangering national security cannot have a sentence of imprisonment suspended (i.e. they are excepted offences) and face presumptions against remission and early release. Finally, there are new measures aimed at facilitating the return of specified “absconders” who are not in Hong Kong.

Unlike the NSL, the offences and measures in the SNSO may be judicially reviewed for compatibility with the Basic Law and Hong Kong Bill of Rights. The “Principles” of the SNSO states that “human rights are to be respected and protected” and the rights and freedoms “enjoyed under the Basic Law, the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to the HKSAR, are to be protected in accordance with the law” (s.2(b)). The presumption of innocence and other legal rights in the criminal process are also expressly mentioned in the statement of Principles (s.2(c)). No doubt cases in the future will raise issues as to the proportionality of the new rules and decisions executed under those rules. For now, the number of notable national security law judgments can still be listed on less than two pages (see list below).

I wish to express my deep appreciation for the hard work of contributing editors in providing updates throughout the year for the supplements and main work, for the continuous support of the Sentencing Editor and Editor-in-Chief, for the diligent research done by my student editors (Oscar Wong, Jonathan Ho, and Cover Lai), and for overall management by Thomson Reuters colleagues, especially Wing Yan Ng.

Professor Simon NM Young

Ian Davies Professor in Ethics

Parkside Chambers

18 August 2024

List of Notable National Security Law Judgments

HKSAR v Tam Tak Chi [2024] HKCFA 25 (CO 9(1), legal certainty and proportionality of previous sedition offence)

HKSAR v Lui Sai Yu (2023) 26 HKCFAR 332, [2023] HKCFA 26 (NSL 33, sentencing bands, mitigating factors)

Secretary for Justice v Timothy Wynn Owen KC (2022) 25 HKCFAR 288, [2022] HKCFA 23 (NSL 3, courts' duty to safeguard national security and proper adjudication)

HKSAR v Ng Hau Yi Sidney (2021) 24 HKCFAR 417, [2021] HKCFA 42 (NSL 42(2) applies to Crimes Ord ss.9-10)

HKSAR v Lai Chee Ying  (2021) 24 HKCFAR 33, [2021] HKCFA 3 (NSL 42(2), NSL not subject to constitutional review, grounds for granting bail)

Secretary for Justice v Persons Conducting Themselves in Acts Prohibited (Use of Protest Song) [2024] 3 HKLRD 32, [2024] HKCA 442 (NSL 21, secession, civil injunction in aid of criminal law, necessity test)

HKSAR v Tam Tak Chi [2024] 2 HKLRD 565, [2024] HKCA 231 (Crimes Ord ss.9-10 sedition, jurisdiction under NSL 41(3), elements of offence, constitutional challenge)

Lai Chee Ying v Commissioner of Police [2022] 5 HKLRD 205, [2022] HKCA 1574 (NSL Implementation Rules (“IR”) Sch.1, journalistic materials)

HKSAR v Ma Chun Man [2022] 5 HKLRD 246, [2022] HKCA 1151 (NSL 21, sentencing, "serious nature")

Tong Ying Kit v Secretary for Justice [2021] 3 HKLRD 350, [2021] HKCA 912 (NSL 46(1) SJ certificate for non-jury trial, unamenable to constitutional review)

HKSAR v Ng Gordon Ching Hang [2024] HKCFI 1468 (NSL 22(3), elements of subversion, "unlawful means")

HKSAR v Chow Hang Tung [2024] HKCFI 553 (failing to comply with IR Sch.5 notice)

HKSAR v Kwok Man-hei [2024] HKCFI 280 (sentencing of Returning Valiant, conspiracy to commit terrorist activities)

Lai Chee Ying v The Committee for Safeguarding National Security of the HKSAR [2023] HKCFI 1382 (NSL 12, 14, Committee decision not amenable to judicial review)

HKSAR v Lai Chee Ying  [2023] 3 HKLRD 534, [2023] HKCFI 1440 (NSL 44, stay of proceedings)

Lai Chee Ying v Secretary for Justice [2023] 3 HKLRD 275, [2023] HKCFI 1382 (NSL 14, 47, NPCSC Interpretation, no jurisdiction over National Security Committee, certification against overseas lawyers)

Chow Hang Tung v Secretary for Justice [2022] 4 HKLRD 183, [2022] HKCFI 2225 (Magistrates Ord s.87A(2), lifting of reporting restrictions in committal for NSL charges)

J v Commissioner of Police [2021] 5 HKLRD 708, [2021] HKCFI 3586 (IR Sch.7, judicial authorisation)

HKSAR v Leung Kam Wai [2021] HKCFI 3214 (IR Sch.5, NSL 42(2) bail grounds apply to scheduled offences)

Lai Chee Ying v Secretary for Security [2021] 4 HKLRD 695, [2021] HKCFI 2804 (IR Sch.3, dealing with "specified property" includes exercising shareholder voting rights)

HKSAR v Tong Ying Kit [2021] 5 HKC 100, [2021] HKCFI 2239 (NSL 20-21, 24, sentencing, 9 years imprisonment)

HKSAR v Tong Ying Kit [2021] 5 HKC 100, [2021] HKCFI 2200 (NSL 20–21, 24, elements of secession and terrorism, assessment on protest slogan )

A and B v Commissioner of Police [2021] 3 HKLRD 300, [2021] HKCFI 1801 (IR Sch.7, legal professional privilege)

Next Digital Ltd v Commissioner of Police [2021] 5 HKC 411, [2021] HKCFI 1677 (IR r 2, empowers all police officers)

HKSAR v Tong Ying Kit [2021] 3 HKLRD 87, [2021] HKCFI 1644 (Criminal Procedure Ord s.23(1), late addition of alternative non-NSL charge, jurisdiction of designated judge)

HKSAR v Wan Yiu Sing Edmund [2021] HKCFI 1261 (bail refused)

Next Digital Ltd v Commissioner of Police [2021] 2 HKLRD 857, [2021] HKCFI 1128 (order to enable access to digital device refused)

HKSAR v Lai Chee Ying [2021] HKCFI 448 (bail application after CFA decision)

HKSAR v Cheung King-sang Kinson [2021] HKCFI 3584 (bail granted)

Tong Ying Kit v HKSAR [2020] 4 HKLRD 382, [2020] HKCFI 2133 (NSL 42(2),  lawful authority for refusal of bail, habeas corpus refused)

HKSAR v Cheung King Sang Kinson [2023] HKDC 1463 (sentencing for advocating terrorism)

HKSAR v Wong Denis Tak Keung [2023] HKDC 168 (sentencing for incitement to subversion)

HKSAR v Lai Man-ling [2022] HKDC 1004 (sentencing in speech therapists’ sedition case)

HKSAR v Lai Man-ling [2022] HKDC 981 (verdict in speech therapists’ sedition case)

HKSAR v Wan Yiu Sing Edmund [2022] HKDC 958 (sentencing for conspiracy to do acts with seditious intention)