Friday, February 24, 2017

HKU International Conference on "Who Owns Your Body?" (6-7 April 2017)

The Centre for Medical Ethics & Law of the University of Hong Kong

in collaboration with
The Centre for Law, Medicine & Life Sciences of The University of Cambridge
and

The Centre of Genomics and Policy of the McGill University
are pleased to announce

A conference on Property Rights in Human Bodies, Tissue and Data, and on Human Organ Transplantation

entitled


"Who Owns Your Body?”

Thursday & Friday, 6–7 April 2017
Large Moot Court, 2/F, Cheng Yu Tung Tower, Centennial Campus,
The University of Hong Kong
Theme
How does the law govern the ownership of your body? And of its parts, and things derived from it? What are the fundamental legal principles governing claims to ownership, possession and other rights in the human body? And what are the ethical, legal and social impact of applications of materials taken from the human body, particularly in the context of human organ transplantation and the responses arising therefrom? This 2-day conference aims to explore these fundamental questions from ethical, legal, medical, religious and social perspectives. It will also identify gaps and inconsistencies in current law and practice; discuss the current tensions between the imperatives of clinical and research use for tissue and information and that of the privacy of the individual and suggest how these tensions may be best bridged to mutual benefit.

Speakers and Roundtable Panelists:
Professor King L. Chow, The Hong Kong University of Science & Technology
Professor Leonardo de Castro, University of the Philippines
Dr Imogen Goold, University of Oxford
Professor Guang Xing, Centre of Buddhist Studies, The University of Hong Kong
Ms Alison Hall, PHG Foundation
Dr Calvin Ho, National University of Singapore
Dr Chih-hsing Ho, Academia Sinica, Taiwan
Professor Terry Kaan, The University of Hong Kong
Professor Bartha Maria Knoppers, McGill Centre of Genomics & Policy, McGill University
Mr Alex Lam, Hong Kong Patients’ Voices
Professor Tohru Masui, Center for Medical Genetics, School of Medicine, Keio University
Mr Colm McGrath, University of Cambridge
Dr Jeff Skopek, University of Cambridge
Dato Dr Zahari Noor, Consultant Forensic Pathologist, Government of Malaysia
Dr Ron Zimmern, PHG Foundation

Details: http://www.cmel.hku.hk/events/who-owns-your-body/
Registration:
Please click the following link :
https://hkuems1.hku.hk/hkuems/ec_hdetail.aspx?guest=Y&ueid= 48384

Your kind assistance in encouraging your colleague/friend participation would be highly appreciated.
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Thursday, February 23, 2017

New Issues: SSRN Legal Studies Research Paper Series (HKU)

Vol. 6, No. 6: 23 December 2016
Table of Contents

1.A Principles-Based Response to the Proposed Reform of the Governance Structure for Listing Regulation in Hong Kong
Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law
Nigel Davis, University of Hong Kong
Douglas W. Arner, University of Hong Kong - Faculty of Law

2. The Limits of Critique and the Forces of Law
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law
Scott Veitch, The University of Hong Kong - Faculty of Law

3. Plasticity, Jurisdiction and the Interruption of Sovereignty: A Response to Catherine Malabou Via José Saramago's Seeing
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

4. Narrative, Space and Atmosphere: A Nomospheric Inquiry into Hong Kong's Pro-Democracy 'Umbrella Movement'
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

5. The Nomos of Hong Kong's Umbrella Movement
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

6. A Spirit of the Common: Re-Imagining 'The Common Law' with Jean-Luc Nancy
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law


Vol. 7, No. 1: 17 February 2017
Table of Contents

1. 'All for Some' or 'Some for All'? Assessing the Realisation of the Right to Social Welfare in the Retirement Protection Reform in Hong Kong 
Karen Kong, The University of Hong Kong - Faculty of Law 

2. Legal Origin and Corporate Governance for Chinese Family Business: Evidence in Hong Kong, Taiwan and Mainland China 
Hugo Ho-Ting Chu, The University of Hong Kong - Asian Institute of International Financial Law, The University of Hong Kong - Faculty of Law, University College Dublin (UCD) - Michael Smurfit Graduate School of Business, Hong Kong Polytechnic University - Department of Applied Social Sciences 

3. The Emergence of Transnational Environmental Law in the Anthropocene 
Jolene Lin, University of Hong Kong - Faculty of Law 

4. Towards Peer Presence in Post Disaster Governance: An Empirical Study 
Shahla F. Ali, Deputy Director, Program in Arbitration & Dispute Resolution, University of Hong Kong, Faculty of Law

Wednesday, February 22, 2017

Africa Journal of Comparative Constitutional Law and the Recovery of Corruption Proceeds in Kenya

Congratulations to Dr Tom Kabau (PhD 2013) and his two fellow co-editors on the publication of the inaugural issue of the Africa Journal of Comparative Constitutional Law published by Juta Law of South Africa.  News of this inaugural issue was published on the I-CONnect Blog.  Members of the international advisory board include Shahla Ali and Yash Ghai.  Dr Kabau contributed an article on the recovery of corruption assets in Kenya, in which he drew upon the experiences of Hong Kong and Hong Kong's anti-corruption agency the Independent Commission Against Corruption.  The details of his article are as follows:

"Constitutional dilemmas in the recovery of corruptly acquired assets in Kenya: Strengthening judicial assault on corruption"
Tom Kabau
2016, Issue 1, pp 23-57
Abstract: Despite widespread incidences of corruption in Kenya, obtaining evidence for the prosecution of offences relating to the vice is highly problematic. As a response to such challenges, the possession of unexplained assets, which is categorised as illicit enrichment in international legal instruments, creates a presumption of corrupt conduct by virtue of section 55 of the Anti-Corruption and Economic Crimes Act (ACECA). On that basis, ACECA shifts the burden of proof to the subject person, requiring him to demonstrate that the property was obtained lawfully. Whilst section 55 of ACECA provides that such court proceedings are of a civil nature, their linkage with criminal prosecution is extremely high, a fact that Kenyan courts seem to take into account while interpreting the scope of the right to a fair trial in such cases. 
     Unexplained assets recovery proceedings are often challenged in court on allegations of violation of the constitutional right to a fair trial, especially the presumption of innocence, and the right against self-incrimination, which are categorised as absolute entitlement under the Constitution. However, widespread corruption erodes accountability, undermines the rule of law and, therefore, establishes conditions in which even the right to a fair trial cannot be realised. It is on that basis that the article posits the view that courts should interpret the reversal of burden of proof in unexplained assets recovery proceedings, and the utilisation of the evidence obtained in subsequent criminal prosecution for corruption, as operating within the parameters of the right to a fair trial. Such an interpretative approach may facilitate institutionalisation of accountability in public institutions, including in the Judiciary, and therefore guarantee all Kenyans the right to a fair trial.

Tuesday, February 21, 2017

Puja Kapai to Moderate Discussion on Ethnic Minorities with CE Candidate Carrie Lam (23 Feb 17)

Puja Kapai will be moderating an armchair discussion with Mrs Carrie Lam, candidate for the Chief Executive election.  The event is titled "What is the Future for Non-Chinese And Ethnic Minorities in Hong Kong" and will be held at the Sai Ying Pun Community Complex at 7:30 pm on 23 February 2017.

Thursday, February 16, 2017

Douglas Arner on China Fintech at the Latham & Watkins Shenzhen Technology Conference (SCMP)

"Experts call for better fintech regulation in China, Hong Kong"
Zen Soo
South China Morning Post
15 February 2017
Financial technology experts are calling for better regulations in China and Hong Kong to help the industry thrive, especially since existing laws still lag behind the pace of innovation and technology.
    China, which is home to companies operating mobile payments and financial technology (fintech) services like Alibaba affiliate Ant Financial and Tencent, is widely regarded as a global leader in the fintech industry. Alibaba owns the South China Morning Post.
     Ant Financial operates third-party online payment platform Alipay, while Tencent operates WeChat Wallet, a mobile wallet feature built into its messaging app WeChat. Collectively, both companies account for more than 70 per cent of the third party online payments market in China, according to market research company iResearch, with well over a billion users between them.
     “If we look at the evolution of the payments system in China, we can see that it’s built from ... frequent e-commerce, expanded via smartphones through [mobile] payments, and more recently to finance,” said Douglas Arner, professor and co-director of Duke-HKU Asia America Institute in Transnational Law, who was speaking at the Latham & Watkins Shenzhen Technology Conference on Wednesday.
     While innovation in China’s fintech industry was seen as desirable at the beginning since it helped companies get around existing inefficiencies in the financial industry, there has been a change in regulatory approach, where Chinese regulators are more careful about the risks in fintech, Arner added.  Click here to read the full article.

Wednesday, February 15, 2017

Comparative Study of Legal Education and Pathways to Admission in Singapore, Hong Kong and Australia (J of Legal Education)

"Legal Education, Practice Skills, and Pathways to Admission: A Comparative Analysis of Singapore, Hong Kong, and Australia"
Andrew Godwin and Richard Wu
Journal of Legal Education
Winter 2017, Vol. 66, Number 2, pp. 212-236
Introduction: It appears axiomatic that as legal practice becomes more globalized, so too must legal education. One of the byproducts of the globalization of legal practice, involving both an increase in cross-border activity and also changes in the way the legal profession is structured and regulated, is that law schools are increasingly expected to prepare graduates for the challenges of global practice. An important question that arises in this respect is the role law schools should perform in preparing graduates for admission and, in particular, equipping graduates with the practice skills that lawyers need to operate effectively in a cross-border context. A substantial body of literature exists concerning the globalization of legal education and the globalization of legal practice. This paper contributes to the discourse by examining the relationship between the design of pathways to admission—namely, the processes by which graduates qualify for admission to legal practice—and legal education, particularly the incorporation of practice skills into the law school curriculum. This paper examines three jurisdictions in Asia that share a common-law heritage but adopt substantially different pathways to admission: Singapore, Hong Kong, and Australia. All three jurisdictions share a requirement for graduates to obtain practical training before they gain admission to practice.Singapore is unique among the three jurisdictions in that its pathway to admission involves a bar examination that follows a compulsory preparation course. Hong Kong and Australia, by contrast, currently do not adopt a bar examination and, instead, require completion of postgraduate professional legal training as a prerequisite to admission. However, two important points of difference exist between Hong Kong and Australia. First, enrollment in Hong Kong’s postgraduate certificate in laws (PCLL), an intensive one year full-time legal qualification program, is through competitive application. The existence of caps at each of the three providers means that not all graduates are guaranteed of winning a place in the PCLL and, therefore, gaining admission to practice. By comparison, enrollment in the practical legal training (PLT) course in Australia is not capped and all law graduates are therefore able to enroll in the course and gain admission to practice upon successful completion of the course. The second point of difference is that graduates in Australia can undertake supervised workplace training as an alternative to the PLT course and gain admission to practice on that basis without the need to complete a postgraduate professional training course. Interestingly, Hong Kong is currently moving closer to the approach of Singapore with the announcement by the Law Society of Hong Kong in January 2016 that a common entrance examination will be introduced and will come into effect by 2021. Critical questions in all jurisdictions are the role that law schools should play in preparing graduates for admission and the extent to which practice skills are expected to form part of the curriculum for the academic degree, as distinct from the professional training course that follows graduation and precedes admission. In this respect, the similarities are closer among the three jurisdictions. Unlike the American Bar Association, which requires students to complete at least six credit hours of experiential education, all three jurisdictions to date have avoided a prescriptive approach and have instead given the law schools discretion to determine how practice skills should be incorporated into the curriculum. However, some interesting points of difference exist among the three jurisdictions in terms of the extent to which the design of pathways to admission has been driven by perceived deficiencies in the teaching of practice skills within the academic degree and, therefore, the need to supplement these deficiencies as a prerequisite to practice. This paper examines the development of pathways to admission and identifies a number of interesting countervailing trends and contradictions. A central question raised by the comparative analysis is whether professional admission courses should serve as a gatekeeper in terms of assuring quality and competence or whether they should serve simply as preparatory courses for admission to the legal profession. The comparative analysis reveals a number of countervailing trends and contradictions concerning fundamental issues such as the function of a law degree and the impact of globalisation on legal education and legal practice. This paper argues that it is important for legal education to strengthen practice skills while maintaining a rigorous focus on legal doctrine and general skills such as analysis, problem-solving and research. This paper is structured as follows: Part II explores the relationship between legal education and legal practice by examining the emergence of professional training courses and the increasing expectations for law schools to incorporate practice skills into the curriculum. Parts III, IV, and V consider the pathways to admission in Singapore, Hong Kong, and Australia, respectively, and track the debates in each of those jurisdictions concerning the relative importance of practice skills in their design. Part VI sets out the findings of the comparative analysis and offers some observations by way of conclusion.  Click here to read the full article.
 

Tuesday, February 14, 2017

Executive Course: Stolen Goods, Forgeries and Loot (HKU, 6-7 March 2017)


EXECUTIVE COURSE 

Stolen Goods, Forgeries and Loot: Intersections of Art, Law and Crime 


Monday 6th – Tuesday 7th March 2017
10:00 – 17:30
Academic Conference Room, 11/F Cheng Yu Tung Tower,
Centennial Campus The University of Hong Kong 

The University of Hong Kong Faculty of Law is pleased to announce its first Executive Course on Art, Law and Crime. The Course will comprise of two days of intensive interactive workshops (for a total of 10 hours), with a focus on stolen goods, forgeries and loot. Attendees will receive a certificate upon completion of the course. 

The course will be led by the following Discussants: 
Dr. Saskia Hufnagel, Senior Lecturer in Criminal Law and Co-Director of the Criminal Justice Centre (CJC) at Queen Mary University of London. Saskia is currently a Visiting Fellow with HKU’s Centre for Comparative and Public Law. Saskia was a Research Fellow at the Australian Research Council Centre of Excellence in Policing and Security, Griffith University, Australia, and was a Leverhulme Fellow at the University of Leeds. Whilst completing her PhD, she taught at the ANU College of Law and between 2009 and 2011 she held a permanent teaching position at the University of Canberra. She is an accredited German legal professional specialising in criminal law.  
Dr. Rebecca Wong, Assistant Professor at City University of Hong Kong. Rebecca completed her PhD studies at the Department of Sociology, University of Oxford. Her primary research interests are in the fields of green criminology, environmental crime, illegal endangered wildlife trade, criminal networks and issues of trust in the underworld. She is also an associate member of the Extra Legal Governance Institute and the Elephant Research & Conservation Network, University of Oxford. 
Toby J.A. Bull has a BA (Hons) in ‘Fine Arts Valuation’ and a MSc in ‘Risk, Crisis & Disaster Management’. He is a certified art authenticator, having studied at the Centre for Cultural Material Conservation and graduated from the University of Melbourne, Australia. He is widely published in the art crime field and is a very experienced lecturer in the subject. Since 1993, he has worked for the Hong Kong Police Force. Toby is a Freeman of The Worshipful Company of Arts Scholars and holds the Freedom of the City of London.  
Fees
(1) The fee for the Executive Course is HK$4,000 per person, payable upon registration. 
(2) Students will enjoy a discounted fee of HK$1,600 per person. Proof of student status should be submitted with the cheque (Copy of Student ID). 
(3) Those wishing to attend the Executive Course should register here. Cheques should be made payable to “The University of Hong Kong” with your full name and telephone number written on the back of the cheque and sent to Ms. Joyce Fung at Room 921, 9/F Cheng Yu Tung Tower, Centennial Campus, The University of Hong Kong. 
(4) Registration will be completed upon the receipt of the course fee by the Centre for Comparative and Public Law and a confirmation email will be sent to you to advise you accordingly. Receipts for payment will be available for collection on the first day of the course from the registration desk in the morning. 
(5) No refund will be provided for any course fees paid once registration has been confirmed. 
(6) We are currently applying to the Law Society of Hong Kong for CPD points for the course. 
(7) Inquiries may be addressed to Ms. Joyce Fung at joycef@hku.hk.

Thursday, February 9, 2017

HKU Law Alumnus Geoffrey Yeung Recognised in The Loop's 30 Under 30 2016

Congratulations to Geoffrey Yeung (LLB, BBA(Law) 2014; PCLL 2015), Rhodes Scholar and human rights activist, who was recently recognised in The Loop HK's 30 Under 30 2016.  His citation reads as follows: 
When he was younger, Geoffrey Yeung wanted to work as a banker or consultant for international companies. As he grew older, he had a change of heart.
     “Around 2012, I came out as gay after a long period of personal struggle,” Yeung says. “It was then that I realized that there was indeed a community that I really wanted to do something for.”
      Having had experience working as an intern at the UN and at NGOs overseas, he got involved with major players in the LGBTQ movement in Hong Kong, like Pink Alliance. He also helped to establish Action Q, a cross-campus group that mobilizes youth support for LGBTQ rights, social justice, and democracy...
Click here to read the full citation.

Wednesday, February 8, 2017

Roda Mushkat on Counterfactual Reasoning and International Law Methodology (German LJ)

"Counterfactual Reasoning: An Effective Component of the International Law Methodological Armor? 
German Law Journal
2017, Vol. 1, No. 1, pp 59-97
Abstract: The exploration of international legal patterns is an increasingly multifaceted enterprise. As such, it inevitably entails recourse to a progressively broader array of analytical instruments designed to place the process on a firmer scientific, or quasi-scientific, foundation. This expanding set consists predominantly, albeit not exclusively, of qualitative techniques relied upon in seeking generalizations about complex realities that are shrouded in uncertainty. The cluster of tools employed or deemed potentially usable includes, although tentatively, counterfactual thinking. The latter may be regarded as a research vehicle of “last resort,” underpinned by a soft substructure, but it may facilitate the quest for better grasp of phenomena observed in the international law domain and more effective action in that realm.  Click here to download the full article.

Tuesday, February 7, 2017

Daisy Cheung on the Constitutionality of Hong Kong's Compulsory Psychiatric Regime (Int'l J Law & Psychiatry)

"The compulsory psychiatric regime in Hong Kong: Constitutional and ethical perspectives"
Daisy Cheung
International Journal of Law and Psychiatry
Jan-Feb 2017, Vol. 50, pp. 24-30
Abstract: This article examines the compulsory psychiatric regime in Hong Kong. Under section 36 of the Mental Health Ordinance, which authorises long-term detention of psychiatric patients, a District Judge is required to countersign the form filled out by the registered medical practitioners in order for the detention to be valid. Case law, however, has shown that the role of the District Judge is merely administrative. This article suggests that, as it currently stands, the compulsory psychiatric regime in Hong Kong is unconstitutional because it fails the proportionality test. In light of this conclusion, the author proposes two solutions to deal with the issue, by common law or by legislative reform. The former would see an exercise of discretion by the courts read into section 36, while the latter would involve piecemeal reform of the relevant provisions to give the courts an explicit discretion to consider substantive issues when reviewing compulsory detention applications. The author argues that these solutions would introduce effective judicial supervision into the compulsory psychiatric regime and safeguard against abuse of process.

Monday, February 6, 2017

Rick Glofcheski on the Law and Politics of Defamation in Hong Kong (new book chapter)

"The Internet and Politics in the Development of Hong Kong Defamation Law"
Rick Glofcheski
in Doreen Weisenhaus and Simon NM Young (eds), Media Law and Policy in the Internet Age (Hart 2017) 95-111
Introduction: As elsewhere, defamation law in Hong Kong is in a state of flux. This is so largely because modern information technology is changing the ways in which people, including journalists, communicate, disseminate and seek out information and opinions. Although the impact of the new technology should not be over-stated and the pre-Internet era law is adaptable and capable of application in most cases, there can be no doubt that problems created by the new technology and new habits of communication are requiring a high degree of creativity from the courts to the point where statutory intervention may be unavoidable. 
     Hong Kong defamation law is under pressure for another reason. The rules of defamation law seek to strike a balance between free speech and the protection of reputation, but these interests and the value attached to them change over time. In recent years there is evidence of increased expectations on the part of civil society for greater political freedoms, including freedom of expression. The one country, two systems model has worked well enough since the 1997 handover, but Hong Kong is facing new issues in its political evolution. In the absence of an accountable government, but in the expectation of one, a free and active press has a vital role to play in the transition to the next stage of political development. 
     In Hong Kong, defamation law is governed largely by the common law. The Defamation Ordinance, dating to the nineteenth century and modelled on English legislation, is the principal piece of defamation legislation, but does little more than provide minor modifications of some of the rougher aspects of the common law, in particular the defences, many of which are relevant to the press. There have been no significant amendments to the Defamation Ordinance for decades, the few that did take place being cosmetic in nature. It is probably fair to say that the Ordinance has a ‘passed its use-by date’ feel about it. Indeed, a good portion of the Ordinance is concerned with criminal libel and procedure, provisions that are certainly outdated, not to say controversial, and not surprisingly have not been applied by the courts for decades. Leaving aside the need for substantive reform of defamation law brought about by changes in communications technology and changing social expectations, the Ordinance is in need of an overhaul, if only to give it a modern look and to make it more relevant. 
     In the United Kingdom (UK), the jurisdiction with laws closest to Hong Kong’s, a package of defamation law reforms was enacted in 2013 to address some of the problems triggered by the new technology, as well as the problem of so-called ‘libel tourism’, a phenomenon derived from a perception that, because of its favourable jurisdictional and procedural rules and the low threshold for qualifying for substantial damages, the English courts had become the forum of choice of international litigants looking for a plaintiff-friendly venue to file their defamation claims. The 2013 reforms attempt to address that issue as well, while codifying and smoothing over some of the common law principles that were considered to be in need of tweaking.
     In Hong Kong there is as yet no talk of statutory reform, despite defamation laws broadly similar to those of the UK.  Indeed, law reform is a rare event in Hong Kong in any area of the law. This generalised legal inertia is sometimes explained by reference to the laissez-faire, non-interventionist governance philosophy that has been practiced by a succession of Hong Kong governments both pre- and post-handover. More recently, and perhaps more accurately, it can be explained by a governance paralysis brought about by a fear of backlash from a public increasingly suspicious of any change initiated by a non-representative government that has for the most part lost the public trust. In this environment, it falls to the judiciary to initiate change in areas of the law thought to be in need of reform. Thus, defamation law reform in Hong Kong is by necessity a slow, cautious and to some degree random process, dependent on cases coming to the courts, but also constrained by the common law process itself, which does not permit of wholesale breaks with existing precedents. From a review of the post-handover defamation case law it can be seen that the Hong Kong courts, in particular the Court of Final Appeal, are prepared to take the lead and introduce change where it is needed.  However, it may be asking too much of the courts to bear the full burden of law reform in the rapidly changing communications environment. Certainly, judge-made common law has advantages over legislation in that as computer software and other information technology continue to develop and become more sophisticated, the common law may prove a more adaptable process than legislation, which may have been completely overtaken by the new technology. On the other hand, it is hard to imagine how the courts can achieve reforms of the nature of some of those introduced in the UK’s Defamation Act 2013, for instance, the repeal of the statutory presumption in favour of jury trials, or of greater urgency, the abolition of the much-criticised multiple publication rule, which treats each new publication of a libelous statement as a fresh defamation, thereby re-starting the limitation period and perpetuating its actionability. This is surely a major issue in defamation law given the Internet’s capacity to multiply defamatory material over time. In this environment, statutory reform cannot be deferred for much longer. 

New Book: Media Law and Policy in the Internet Age (Hart)

Media Law and Policy in the Internet Age
Editors: Doreen Weisenhaus and Simon NM Young
Hart Publishing
2017, 280 pp.
Description: The Internet brings opportunity and peril for media freedom and freedom of expression. It enables new forms of publication and extends the reach of traditional publishers, but its power increases the potential damage of harmful speech and invites state regulation and censorship as well as manipulation by private and commercial interests.
     In jurisdictions around the world, courts, lawmakers and regulators grapple with these contradictions and challenges in different
ways with different goals in mind. The media law reforms they are adopting or considering contain crucial lessons for those forming their own responses or who seek to understand how technology is driving such rapid change in how information and opinion are distributed or restricted.
     In this book, many of the world’s leading authorities examine the emerging landscape of reform in nations with variable political and legal contexts. They analyse developments particularly through the prisms of defamation and media regulation, but also explore the impact of technology on privacy law and national security.
     Whether as jurists, lawmakers, legal practitioners or scholars, they are at the front lines of a story of epic change in how and why the Internet is changing the nature and raising the stakes of 21st century communication and expression. 

Karen Kong and Eric Cheung Cited in Story on Hong Kong's "King of Judicial Review" (HKFP)

Ellie Ng
Hong Kong Free Press
5 February 2017
Trying to hold the government to account in court almost always guarantees a David and Goliath scenario: the government has unlimited resources to fight legal battles, while civilians seeking to rectify injustices face systemic obstacles at every step of the judicial process. 
     But in Hong Kong, one man is unfazed by the challenge. Cheung Chau resident Kwok Cheuk-kin – widely known as the “king of judicial review” – has taken the government to court more than 20 times over the past decade, though he has only won once. The talkative 78-year-old may look like an unassuming elderly retiree, but he is a familiar figure to those on the judicial scene. When Kwok posed for pictures in front of the High Court during our interview, several security guards gave him a nod and a smile... Click here to read the full article.

Melissa Loja on the China-Japan Dispute over the Senkaku/Diaoyu Islands (EJIL)

Melissa H Loja (PhD Candidate)
The European Journal of International Law
2017, Vol. 27, No. 4, pp. 979-1004
Abstract: This article ascertains whether Japan’s possession of the Senkaku/Diaoyu Islands has a legal basis that is opposable to China. It departs from the traditional approach that focuses on historic titles and ancient maps. It applies an alternative approach that is based on the status quo post bellum or the relative legal position of the parties at the end of armed hostilities. This approach is warranted by the practice of China, Japan and the Allied powers of defining the status quo in the East China Sea as a frame of reference for the future disposition of the islands. Primary records of their conduct in the period 1945–1952 reveal consensus that: (i) the islands are part of Nansei Shoto rather than of Formosa; (ii) they remained under the residual sovereignty of Japan and (iii) they were being claimed by Japan but not China. The conduct of the parties proximate to 1945–1956 indicate that there was no prior existing title to the islands that would contradict the status quo. Rather, during the period 1952 up to the critical date of 1970, the positive acts of the Republic of China and the acquiescence of the People’s Republic of China confirmed the status quo.  Click here to read the entire article.


Friday, January 27, 2017

Kung Hei Fat Choy 2017

HKU Legal Scholarship Blog wishes everyone a Happy Chinese New Year.  We mark this year's Year of the Rooster with Professor Richard Cullen's splendid annual cartoon:
"Gong Hei, Gong Hei" by Richard Cullen

Thursday, January 26, 2017

Hualing Fu: China's Anti-Corruption Campaign "Coming to an End" (Financial Times)

"China corruption prosecutions drop for first time in five years"
Hudson Lockett
Financial Times
25 January 2017
China’s courts prosecuted fewer officials for corruption for the first time in five years in 2016, marking a substantial shift for President Xi Jinping’s high-profile anti-corruption campaign ahead of a period of change for the Chinese Communist party’s leadership.
     The number of officials expelled from the party and handed over to China’s courts for prosecution fell more than 20 per cent last year to 11,000, according to figures from the annual work report of Wang Qishan, head of the party’s Central Commission for Discipline Inspection and Mr Xi’s right-hand man. “By and large the campaign that we have witnessed against corruption is coming to an end,” said Fu Hualing, a law professor at the University of Hong Kong. “Now it’s really about political discipline.”... Click here to read the full article.

Wednesday, January 25, 2017

Clement Chen on the Role of Chinese Courts in Upholding Freedom of Information (Tsinghua China LR)

Tsinghua China Law Review
2016, Vol. 9, No. 1, pp 79-138
Abstract: This paper explores the inconspicuous but increasingly important role of Chinese courts in handling the often conflicting goals of promoting government transparency and maintaining social stability within the Party-state context. The Regulation on Open Government Information created an unprecedented right of access to information with the potential for improving administrative accountability, but established a peculiar exemption of social stability. “Stability maintenance” has long been an overwhelming political task for Chinese state organs, and has profoundly affected legal practices, posing a challenge to judicial control of abuse of the aforementioned discretionary exemption. Added to the challenge is the obscurity in the standards for judicial review of discretion. 
     The paper reviews how the courts respond to this challenge by focusing on representative cases concerning government claims that disclosure would endanger social stability. It finds that in referential cases adopted in official publications, the courts have developed creative approaches to scrutiny. However, other sources indicate that meaningful review is largely absent from cases involving appropriations of private properties and those concerning large-scale maladministration. It argues that the judicial inaction can be attributed to two concerns underlying the common practice of the stability maintenance system, i.e. containing collective mobilization and inhibiting expression of public mistrust in governance. The courts demonstrate their ability in judicializing the political concept of social stability in the context of right to information, and thus assume more than a deferential role in the politics of stability maintenance. Nevetheless, they remain captive to the imperative of securing core regime interests. The liberalization implications of transparency reform are hence minimized through the judicial process.  Click here to read the full article.

Anne Cheung on Press Freedom and the HKU Injunction Case (M&ALR)

Media & Arts Law Review
2016, Vol. 21, Issue 2, pp 183-198
Abstract: English common law has long been skeptical, or even hostile, to any forms of prior restraint on publication and expression. The root can be traced back to William Blackstone’s writing in the eighteenth century, and the belief is premised on the necessity to search for truth and to guard against the abuse of power. This closely guarded assumption has resulted in the courts often imposing a higher threshold and exercising careful scrutiny when granting any prior restraint affecting freedom of expression. Yet this poses a vexing problem when handling applications for interlocutory injunctions. On the one hand, freedom of expression arguably warrants stricter scrutiny by the court in any form of prior restraint. On the other hand, an assessment of the merits of a case is deliberately kept to a minimum when granting an interlocutory injunction because of the urgency of the matter in dispute, leaving full consideration for trial. Thus, an interlocutory injunction which has an impact on freedom of expression exemplifies the inherent tension in prior restraint applications. While the United Kingdom has raised the threshold for such cases under section 12(3) of the Human Rights Act 1998 (UK), Hong Kong is left to figure out its own legal standard. 
     This difficult task is well illustrated in the litigation of The University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd and the Person or Persons Unknown (‘HKU case’), which was an application for an interlocutory injunction to stop further leaking of confidential information based on the doctrine of breach of confidence. The case started out with the refusal of appointment of a well-known legal scholar to be the pro-vice-chancellor of the University of Hong Kong (‘HKU’) by the University Council (‘Council’) in 2015. Reasons were not given by the Council but there was widespread speculation that the refusal of appointment was politically motivated. Following a press conference given by a student member of the Council recounting what certain members had said in a closed-door meeting, secret tapes and audio recordings of the said Council meeting were subsequently given by a secret source to the first defendant. The latter then broadcast certain segments of the meeting conversation, making the audio recording accessible on its Commercial Radio station website and Facebook page. HKU quickly applied for an ex parte interim injunction based on breach of confidence to stop the broadcasting of the audio recording of the Council meeting by the first defendant, but was challenged only with further leaking of the audio recording by the second defendant(s) (the ‘Unknown Person(s)’) in overseas websites based in Taiwan and Sweden. By the time the interlocutory injunction was before Lam J, much of what was said in the relevant Council meeting was already in the public domain. 
     Facing this application for an interlocutory injunction, Lam J did not consider it necessary to apply for a higher threshold despite the fact that freedom of expression is a constitutional right under article 16 of the Hong Kong Bill of Rights. Rather, he has decided to ‘suitably adjust and apply’ the traditional common law approach in American Cyanamid v Ethicon Ltd. At the end of the day, he granted the interlocutory injunction and ordered an expedited trial. 
     Although Lam J’s decision in applying American Cyanamid in a flexible manner is sufficiently plausible from a strict legal perspective, I argue that his decision and reasoning are far from persuasive in the given context. His narrow interpretation on what constitutes public interest, which is an essential element to be considered in the tests of breach of confidence and balance of convenience in American Cyanamid, has titled the balance unduly in favour of the plaintiff. In addition, the judgment has not only revealed the unsatisfactory state of unstructured balancing of private interest and fundamental right in interlocutory applications, it has also highlighted the challenge that internet disclosure and leaking has posed to the practical effectiveness of an (interlocutory) injunction order. 
     The discussion starts with a summary of the refusal of the appointment saga, followed by an analysis of the decision with a focus on the balance between the public interest in upholding confidentiality and the public interest in disclosure as played out in the analysis on the legal doctrine of breach of confidence and the application of the principle of balance of convenience.  Click here to download the article.

Tuesday, January 24, 2017

Jerome Cohen on China, Taiwan, Hong Kong and the ICCPR (Video of HKU Seminar)

Professor Jerome Cohen of NYU Law School and Faculty Director of the US-Asian Law Institute recently delivered a lecture at the Centre for Chinese Law, HKU Faculty of Law, on 12 January 2017. The lecture was chaired by Professor Cohen's former student, Cheng Chan Yue Professor in Constitutional Law, Professor Albert Chen.  The abstract for the speech is as follows:
On the 50th anniversary of the creation of the International Covenant on Civil and Political Rights, I will discuss China’s relevance to the UN’s quest for universal ratification of this major human rights treaty. In view of the ICCPR’s guarantees of freedoms of expression and religion, the restrictions that it imposes on the power of governments to punish people arbitrarily, and its strong support for the right to self-determination of all peoples, why did the People’s Republic sign the Covenant in 1998? Why then has it failed to ratify the ICCPR and what are the prospects? I will compare Beijing’s record with the very different position of the Republic of China on Taiwan and also refer to the unusual situation of Hong Kong (and Macao), a special administrative region of the People’s Republic that is protected by the ICCPR even in the absence of ratification by the central government.

Saturday, January 21, 2017

Amanda Whitfort Awarded HKU Knowledge Exchange Excellence Award 2016

Congratulations to Amanda Whitfort on winning the University of Hong Kong Knowledge Exchange Excellence Award 2016.  The award was for Amanda's work on the "Review of Animal Welfare Legislation in Hong Kong".  This university-wide award was introduced in 2015-16 and has only been awarded twice.  The award recognises research that has made a significant impact in society.  The summary of the impact of her work which began in 2008 when she was awarded a Public Policy Research grant by the Research Grants Council to conduct her study of animal protection legislation is as follows:
This research provided the first and, to date, only empirical study of the adequacy of animal protection legislation in Hong Kong. The study generated widespread public discussion and impetus for law reform and was used by the Agricultural Fisheries and Conservation Department (AFCD) to introduce new legislation controlling the breeding and sale of companion animals in Hong Kong with the enactment of the Public Health (Animals and Birds) (Animal Traders) Regulations 2016. The study also resulted in significant policy change in stray-animal management and introduction of specialised training for police and prosecutors in presenting animal cruelty cases at court.
The Award will be presented at the University's annual award presentation ceremony to be held in March 2017.

Friday, January 20, 2017

Cora Chan on Measuring Deference in Rights Reasoning (Int'l J Con Law)

"A preliminary framework for measuring deference in rights reasoning"
Cora Chan
International Journal of Constitutional Law
Jan 2017, Vol 14, Issue 4, pp 851-882
Abstract: This article proposes a methodology for measuring how deferential judicial reasoning is in human rights cases. The proposed framework ranks four strategies of exercising deference—rights definition, standard of justification, burden of justification and cogency of arguments—along a triadic scale of not deferential, moderately deferential and highly deferential. The proposed framework is designed for common law jurisdictions that embrace a two-stage approach to rights adjudication in which courts initially ask whether there has been a prima facie limitation of rights and then, if so, proceed to assess that limitation using a proportionality test. The framework provides both the criteria for qualitative evaluations of, and the methodological foundation for quantitative studies of, the increasingly important phenomenon of judicial deference.

Jianlin Chen on Optimal Property Rights for Emerging Natural Resources (UMJ Law Reform)

University of Michigan Journal of Law Reform
Fall 2016, Vol. 50, No. 1, pp 47-105
Abstract: This Article critically examines the design of property rights for emerging natural resources—naturally occurring substances that humans have only recently come to be able to exploit viably—through a case study of how the fifty states allocate ownership in, and regulate the use of, atmospheric moisture, an issue that has emerged in the context of weather modification (particularly cloud seeding). Building on the surprising finding that legislative declarations of state ownership have not resulted in greater regulatory control or other substantial restrictions on private use, this Article highlights a dimension of property rights design that has yet to receive concerted scholarly attention: the relative ease of future transitions— transitions both in ownership and in control mechanisms. This Article explains how state property facilitates easier and more holistic transitions and argues that state property can be an optimal allocation of emerging natural resources, because uncertainty surrounding the viability of present uses of the resource suggests that property rights arrangements may need to be changed in the foreseeable future. More broadly, the case study reveals how state property—properly stripped of its undeserved associations with socialism—still has an important role to play in property rights literature.  Click here to download the full article.

Jolene Lin Appointed to Editorial Board of Journal of Environmental Law (OUP)

Congratulations to Jolene Lin on her appointment to the Editorial Board of Journal of Environmental Law (JEL), published by Oxford University Press.  JEL is one of the leading international journals on environmental law and an "an authoritative source of informed analysis for all those who have any dealings in this vital field of legal study" (JEL website).  Jolene also sits on the editorial boards of Transnational Environmental Law (Cambridge University Press), Climate Law (Brill), and the book series Legal Perspectives on Global Challenges (Eleven International Publishing).

Friday, January 13, 2017

Katherine Lynch on Multidisciplinary Cooperation in Child and Family Justice in Hong Kong (new book chapter)

"The Need for Multidisciplinary Cooperation in Child and Family Justice in Hong Kong"
Katherine Lynch
in Anne Scully-Hill, Sala Sihombing and Katherine Lynch (eds), Reforming Hong Kong's Child & Family Justice System (CUHK Press, 2016) ch 10.
Introduction: Hong Kong is facing significant pressure for meaningful reform of its child and family justice system to ensure that it serves the needs of Hong Kong children and families. The recent death of five-year old Yeung Chi-wai at home by ingestion of lethal amounts of crystal methamphetamine drugs (despite an earlier decision to remove him from his home) is but one tragic example of the deficiencies in Hong Kong’s child and family justice system. Speakers at a recent May 2016 meeting in Legislative Council highlighted the flaws in Hong Kong’s existing child protection system, including: outdated child protection laws, no legal duty to investigate cases of abuse or assess victims and make required provisions, lack of accountability and enforceability of the multidisciplinary case conference mechanism, lack of adequate social work resources and chronic shortages in residential homes and foster case for children in need.
     The sad death of Yeung Chi-wai emphasizes the pressing need for multidisciplinary collaboration and reform of Hong Kong’s child and family justice system and the introduction of new legislation that adequately protects children. Hong Kong’s Chief Justice Geoffrey Ma Tao-li has also emphasized that the family system in Hong Kong must ensure that it is accessible, fair, efficient and provides a simpler modernized process for contested family and matrimonial cases. In May 2015 the Chief Justice’s Working Party accepted 136 proposals for procedural reform, including a single set of self-contained family justice procedural rules. More recently, in November 2016, Hong Kong’s Labour & Welfare Bureau in consultation with the Department of Justice, Home Affairs Bureau, Social Welfare Department (SWD), Judiciary and other relevant departments, prepared the long awaited draft “Children Proceedings (Parental Responsibility) Bill” (the Children’s Bill) for public consultation. 
     The public consultation for the Children’s Bill highlights the serious implementation gap that exists between the extensive ideas for reforming Hong Kong’s child and family justice laws and actual implementation of that change. Many Hong Kong Law Reform Reports have recommended significant substantive and procedural change but until the announcement of the Children’s Bill in November 2016 very little legislative reform has been implemented. These reform reports highlight that vulnerable children and families dealing with separation and divorce are not merely encountering legal problems with social elements but, rather, these are profound social problems with one or more legal elements. In order to improve the experience of children and families in this context, a broader multidisciplinary system must be established rather than focusing primarily on the formal justice system. While some multistakeholder approaches have been established in Hong Kong, for example, the establishment of the Family Council in 2007 and the Comprehensive Child Development Service in West Kowloon in 2005, more formal collaborative inter-departmental measures need to be introduced in Hong Kong. This chapter deals with the need to create formal systemic multi-disciplinary processes and structures with a broad approach to collaboration and consultation with Hong Kong’s child and family justice system and considers comparative approaches in the UK and Canada as possible reform models.

New Book: Reforming Hong Kong's Child & Family Justice System (CUHK Press)

Reforming Hong Kong's Child & Family Justice System
Editors: Anne Scully-Hill, Sala Sihombing and Katherine Lynch
Chinese University of Hong Kong Press
November 2016, 408 pp
Book Description: This book presents a collection of papers from the 3rd Children’s Issues Forum held in Hong Kong in November 2015 focusing on reform of Hong Kong’s child and family justice system by integrating legal, comparative and multi-disciplinary approaches. Distinguished local and overseas jurists, legal practitioners and academics offer insights and perspectives on a range of issues affecting children, including: commentary on the proposed introduction of a new Children’s Ordinance in Hong Kong; the endemic problem of children living in poverty in Hong Kong; the exclusion and marginalization suffered by children in Hong Kong society; improving access to justice for Hong Kong children and allowing their voices to be heard; promoting the concept of parenting responsibilities in place of custody; reforming children’s dispute resolution procedures to establish more collaborative less adversarial process options; the important role of research in nurturing children and youth; and the need for increased multidisciplinary and inter-agency cooperation and collaboration in child and family justice systems. Comparative perspectives on child centric family justice reforms and policy developments are offered from leading jurists from Australia, Canada, Singapore, Israel, Macau and China.

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