Sunday, August 21, 2016

Amanda Whitfort on Puppy Mills in Hong Kong (SCMP)

"No more puppy mills: Tighter animal welfare laws will clamp down on unscrupulous breeders"
Sarah Karacs
South China Morning Post
20 August 2016
Hong Kong dog lovers can breathe more easy after a much campaigned for amendment to animal trading laws is set to be put in place.
     The campaign to close a legal loophole enabling puppy milling in the city has finally been put through, meaning unscrupulous pedigree breeders will face higher penalties and more stringent licensing laws.
     The city has seen a boom in the pedigree pup trade over the last two decades which has fueled a home-grown industry churning out puppies like products on a factory chain.
     With the amendment, traders who could formerly masquerade as ‘hobby breeders’ owing to outdated laws, will soon have to apply for licences and be subject to inspections when the law comes into effect.
     “We are over the moon ... regarding the amendment” campaigner Gary Chin said. His six-year-old husky-sheepdog cross, named Cooper, had been rescued after years of neglect and cruelty as a breeder dog.
But legal expert Amanda Whitfort, an associate professor at the University of Hong Kong’s law faculty who had spearheaded the campaign, said the amendment will only stop breeders who keep dogs in poor conditions.
     “For those breeders providing appropriate welfare conditions for their dogs, there will be no problem in obtaining a licence to continue,” she said, adding that she was “delighted” the amendment had finally gone through... Click here to read the full article.

Wednesday, August 17, 2016

Alexa Lam to Speak at the Strook Sovereign Wealth Forum (24 Aug 2016)

Alexa Lam will be speaking on a panel of "international experts and sovereign wealth fund managers from around the world" at the Stroock Public Forum on Sovereign Wealth on 24 August 2016, to be held at the Jackson Hole Center for the Arts in Jackson, Wyoming.  The forum will precede the Federal Reserve Bank of Kansas City's annual Jackson Hole Economic Policy Symposium.
      The University of Wyoming's website reports the following on the event: 
Sovereign wealth funds are government-owned funds invested in assets such as stocks, bonds, real estate and precious metals, or in alternative investments such as private equity funds or hedge funds. The Permanent Wyoming Mineral Trust Fund is an example of such a fund. 
Wyoming State Treasurer Mark Gordon says nations’ and states’ sovereign wealth funds are derived from a variety of sources and created for a variety of purposes. Those funded by revenues from fossil fuel production, such as Wyoming’s, have come under pressure in the past year as a result of declining prices and regulation. 
“We are excited to have a conversation among peers about how people are contending with these new circumstances, and the strategies they’re using to preserve purchasing power for future generations,” Gordon says. 
Other topics to be addressed include how large a sovereign wealth fund should be relative to the size of the population; the fundamentals of the economy and the role of the fund; and how the evolving global economy affects the rationale and expectations for sovereign wealth funds. 
     Professor Lam will speak on the experiences of Hong Kong and China.  In particular, she will present the following three main points from this experience:
1. While a good number of SWFs have clear mandates stating that they are to provide revenue during economic downturns and preserve and grow wealth for future generations, China's SWF (the China Investment Corporation) has a wider objective, ie, to complement the country's "Go Global" economic and geopolitical strategy.

2. China Investment Corporation holds Chinese banks and SOEs, and takes a nationally-integrated approach in outbound investments. Contrary to the regulatory philosophy of the Santiago Principles, political and economic considerations behind China's sovereign investments are intertwined. A new regulatory framework is probably needed to cope with this China model as it gains currency.

3. Hong Kong drew on its exchange fund when its US dollar-peg came under attack during the Asian Financial Crisis in 1998. Her experience shows that clear Fund objectives are crucial to the public's confidence in the government, especially at times when tough and unpopular decisions have to be made.
     Professor Lam will also be speaking on "Technology, Regulation and the Democratzation of Financial Services" at HKU on 7 September 2016, 12:30pm.

Tuesday, August 16, 2016

HKU Law Hosts International Conference on Surrogacy (8-9 Sept 2016)

The Centre for Medical Ethics & Law
of the University of Hong Kong
in conjunction with 
The Centre for Law, Medicine and Life Sciences, 
University of Cambridge
are pleased to announce a conference on

Eastern and Western Perspectives on Surrogacy

Friday & Saturday, 9-10 September 2016
Wang Gungwu Theatre
Graduate House
The University of Hong Kong

With the advances in artificial reproductive techniques, and an increasingly globalised world, surrogacy has gone from a niche practice to a global market, raising questions of parenthood, conflict of laws, and the commercialisation of the birth process. While there have been comparative studies undertaken concerning approaches to surrogacy from Europe and "Western" jurisdictions, there is gap in the literature with regard to the approach international surrogacy in Asia (and indeed Africa). As such, this conference will bring together academics from both Eastern and Western jurisdictions in order to provide a more comprehensive understanding of the confluences and tensions between the way in which surrogacy is approached in these two regions.

  • Comparative perspectives on surrogacy from experts from Australia, England, France, Germany, Hong Kong, India, Israel, Japan, New Zealand, Russia, Singapore, South Africa, South Korea, Taiwan, Thailand, USA 
  • The Process of Law Reform (Law Commissioner, England and Wales) 
  • Judicial perspectives from past and present judges from Australia, England and Germany 
Keynote Speakers: Sir Mark Hedley (retired High Court Judge, England and Wales), Chief Justice John Pascoe (Federal Court of Australia)

Speakers: Walter Pintens, Anatol Dutta, Frank Klinkhammer, Claire Fenton-Glynn, Mary Keyes, Debra Wilson, Debbie Horsten, Rhona Schuz, Olga Khazova, June Carbone, Prabha Kotiswaran, Daisy Cheung, Terry Kaan, Chih-Hsing Ho, Soraj Hongladarom, Shinichiro Hayakawa, Nick Hopkins

Moderators: Esther Farnos Amoros, Marcus Dearle, Matthew Jolley, Johannes Chan, Azan Marwah, Spencer Clarke, Jens M Scherpe

Project Leaders: Jens M Scherpe, Claire Fenton-Glynn and Terry Kaan

Information & Registration: +(852) 3917 1845;  Registration here

Saturday, August 13, 2016

Po Jen Yap on Originalism and Textualism in Singapore (new book chapter)

"Uncovering originalism and textualism in Singapore"
Po Jen Yap
in Jaclyn Neo (ed), Constitutional Interpretation in Singapore (Routledge 2016) chapter 5
Introduction: Our judges in Singapore, like many of their counterparts in the West, tend to present adjudication merely as a mechanical exercise of applying the law to the facts of a specific case. In so doing, it would appear that the law can truly be separated from politics and judges merely follow pre-determined rules and exercise little discretion when making decisions. 
     However, if we were to closely examine the prevailing theories of interpretation that our judges purport to rely upon when they resolve constitutional disputes, we may discover that these principles are often mere constitutional ‘fig leaves’ that cover their normative choices. In particular, two such interpretive modalities are flourishing in Singapore: originalism and textualism. 
     But, I must emphasise that that these fig leaves seek not to mislead anyone about what the courts are doing. As astutely observed by Professor Christopher Forsyth in his seminal article: 
The point about the fig-leaf metaphor (and why it is so apt) is that fig leaves do not deceive anyone as to what lies beneath them. The fig leaf, like the swimming costume on a crowded beach, is to preserve the decencies. It enables individuals to interact in an appropriate manner without threatening the social order.
Similarly, the use of fig leaves in Singapore demonstrates that our judges implic- itly accept the constitutional role that they are expected to play within our political system; and the truth is, our judges, on their own, can do very little. 
     The political reality is that, in Singapore, the state has been governed by the same ruling party, the People’s Action Party (PAP), since the nation’s independence, and will be so governed for the foreseeable future. When legislative and executive powers are consolidated by a semi-permanent party, the dominant political entity in question can display its disagreement by overriding a constitutional decision easily with a constitutional amendment. Our judges, operating in such a political system, would not be oblivious to this fact. More significantly, Singapore has experienced a judicial crisis, which arguably has cast a pall over the state of constitutional review. When the Court of Appeal ruled against them in 1989, for the first and last time on constitutional grounds, the Government swiftly overturned this decision via a series of constitutional and statutory amendments within a month of the judgment. In that seminal decision of Chng Suan Tze v Minister of Home Affairs, the Court of Appeal, after surveying a litany of Commonwealth precedents, quashed the preventive detention orders issued under the Internal Security Act (ISA) against alleged Marxist conspirators and also concluded in obiter that the ministerial discretion to detain personnel under the ISA would be subject to an ‘objective’ test of review by the courts as constitutionally required under Articles 96 and 127 of the Singapore Constitution. This decision proved to be disquieting to the Government, so much so that in the subsequent amendments, it restricted judicial review in ISA cases to only narrow procedural grounds. 
     Part II of this chapter begins by identifying and uncovering the judicial use of ‘originalism’ as an interpretive modality. Part III continues with a close exami- nation of the judicial reliance on ‘textualism’ as another preferred mode of con- stitutional interpretation. In essence, I shall seek to illustrate that the judicial decisions reached by our courts are neither mandated by the text nor the history of our Constitution, but are the consequence of normative choices made by our judges.

Friday, August 12, 2016

Marcelo Thompson on the Normative Responsibility of Internet Intermediaries (Vanderbilt JETL)

Marcelo Thompson
Vanderbilt Journal of Entertainment & Technology Law
Summer 2016, Vol. 18, Issue 4, pp 783-849
Abstract: This Article puts forward a normative approach to the responsibility of Internet intermediaries for third-party content they host. It argues that, in thinking about intermediary liability, the focus should be on intermediaries’ responsibility towards the reasoning processes in reaching decisions, rather than on the outcomes of intermediaries’ decisions. What is necessary is a framework that, while attaching responsibilities to such decisions, creates a cushioning system for their making, mitigating the hardship of honest mistakes. Within this framework, intermediaries must be seen not as mere keepers of gates, but as designers of artifacts whose use plans settle normative questions and play a vital role in the construction of our normative reality. Accordingly, an interpretive commitment must be required toward the integrity of such a reality. Every time intermediaries make a decision, as they always will and should—in all of this hidden jurisprudence—the integrity of our normative order and the values it reflects are at stake. This commitment to integrity must be seen as part of a broader concern with justice (both corrective and normative) in the internal life of the information environment. For the same reason, however, we should expect responsible efforts, not perfection, from intermediaries. Like journalists who are entitled to make mistakes, if only they seek responsibly to avoid the same (which is the idea of responsible communication in defamation), so it should be with Internet intermediaries. Understanding the above enables us to move away from outcomes-based approaches towards a more granular and fair system of intermediary liability.  Click here to download the article.

Thursday, August 11, 2016

Fry and Amesheva on the Relationship Between International Climate Change and International Health Laws (Fletcher Forum)

James D Fry and Inna Amesheva (PhD candidate)
The Fletcher Forum of World Affairs
Winter 2016, Vol. 40, Issue 1, pp 73-98
Abstract: Climate change is intertwined with global human health, and the corresponding branches of law simultaneously conflict with and complement each other. The authors take a comparative approach to the dynamic relationship between international climate change law and international health law, demonstrating their interaction as applied to integrated challenges such as climate change alleviation and the 2015 Paris Agreement.  Click here to download the article.

Wednesday, August 10, 2016

HKU Workshop: China's Identity in International Law (1-2 Sept 2016)

The University of Hong Kong’s
East Asian International Economic Law & Policy Programme,
Asian Institute of International Financial Law,
Centre For Chinese Law
“The Impact Of Western International Law On The Disintegration Of The Late Qing Empire,
And The Continuing Consequences For East Asia In The 21st Century”
RGC Theme-based Research Scheme Project: 
“Enhancing Hong Kong’s Future as a Leading International Financial Centre”

An International Workshop on


Co-Chaired by
Professors C. L. Lim & John Anthony Carty
University of Hong Kong Tsinghua University, Beijing

1st and 2nd of September 2016 (Thursday and Friday)
Programme commences at 9:30 a.m. on 1 September 2016

Academic Conference Room, 11/F Cheng Yu Tung Tower, The University of Hong Kong

China's history with international law as practiced on it by the West and Japan has left all its relations politically and militarily with its neighbours volatile and also its relations with the United States. However, too intense an emphasis has been given to the South China Sea issue. It risks neglect of a broader and deeper appraisal of China's international economic relationships and economic treaty arrangements, as well as the range of choices China faces in the WTO, in the sphere of regional trade arrangements, in China's investment treaty policy, in the field of international financial institutions and in the developmental field. After all, the main weight of China's recent strategy for relating to and integrating with the world currently relies upon economic development cooperation and even integration – trade, investment and financial - with important implications for how China perceives itself. Having said that, it appears since 2009 and maybe especially since 2012 that China also wants to deal more with that which has been left over from the past. We propose to take a holistic view of China's foreign economic treaties and initiatives, and the historical and territorial complexities it now faces. We do so by asking how China currently is perceived, and perceives itself, as a major actor in the international legal order. This interdisciplinary collaboration will be led by presentations on original diplomatic archival research and by international economic and financial law experts. 
      Programme to be distributed to attendees. The workshop is open to the public, although please note that seating is limited and registration is required. Please register online or email Flora Leung at to reserve a place.

Listen to Michael Davis' 4-Part Backstory on RTHK Radio 3

Professor Michael Davis was interviewed on Noreen Mir's 123 Show on RTHK Radio 3.  The interview was broadcast in four "Backstory" segments from 26 to 29 July 2016.  As a parting farewell to Hong Kong, the interview covers a wide range of topics over the course of Professor Davis' 30 years of scholarship and contributions to academic and public affairs in Hong Kong.  Click here to listen to the first segment (26 July 2016).

Tuesday, August 9, 2016

Amanda Whitfort on Tackling Animal Cruelty in China (APPS Policy Forum)

"Tackling animal cruelty in China"
Amanda Whitfort
Asia & The Pacific Policy Society Policy Forum
4 August 2016
On 2 July 2016, a long-anticipated amendment to China’s most important law protecting animals, the Wildlife Protection Law, was approved by the National People’s Congress. Since its promulgation in 1989, the law has been the subject of criticism by animal protection scholars, most seriously because it explicitly promotes the use of wildlife for human benefit. This has led to widespread farming of wild animals, including tigers and Asiatic black bears, both of which are used in traditional Chinese medicine. It has also permitted cruel practices such as the de-fanging, drugging and de-clawing of wild animals for performances and photographs with customers in zoos.
     On paper, the amendments to the law appear to provide some improvements: promoting conservation of wildlife habitats, and specifying that the purpose of breeding is for species protection, not profit. However, tiger and bear farms have long claimed they promote conservation, while the sale of products containing tiger bones, bear bile, and other derivatives is widespread. The bear bile industry alone is worth US$1.6 billion, and the amended law does not prohibit the continued sale of wild animal derivatives for human consumption.
     It also does not address the problem of cruel animal performances. In 2011 the Ministry of Housing and Urban Rural Development introduced an administrative ban (which is widely flouted) on live animal performances in zoos, but the amended national law continues to legitimise wild animal performances and provides the animals with no protection from cruelty. It will also not provide any cruelty protections for animals farmed and slaughtered for the fur trade, despite China being the world’s largest producer and processor of fur... Click here to read the full article.

Monday, August 8, 2016

HKU Law Faculty Comment on the Invalidation of Pro-Independence Candidates

Austin Ramzy and Alan Wong
The New York Times
3 August 2016
Moves by the government of Hong Kong to bar candidates from a coming legislative election over the issue of independence from China have raised worries in this semiautonomous city about the deterioration of political freedom and the potential for renewed conflict with Beijing.
     Since Saturday, Hong Kong election officers have blocked at least five candidates from the balloting, on Sept. 4, for seats on the city’s Legislative Council over questions about whether they acknowledge the city as an “inalienable part” of China.
     The disqualified candidates are mostly young people who became politically active during the Umbrella Movement protests in 2014, when demonstrators shut down several thoroughfares for more than two months to push for greater choice in elections for chief executive, the top political office in the city.
     The protests failed to elicit any concessions from the government. But they helped fan a “localist” movement, as it is often called, of activists seeking to strengthen Hong Kong’s identity in the face of growing cultural, linguistic and economic influence from mainland China.
     Edward Leung, who said he learned he was barred as a candidate on Tuesday, is a leader of the group Hong Kong Indigenous, which has proposed holding a referendum on whether Hong Kong should become independent...
     His ability to run in February but not in September has raised questions about why the government changed its mind. Some legal scholars and politicians have criticized the decision to strike candidates from the ballot, calling it bureaucratic overreach and an infringement on political freedoms.
     If a candidate is suspected of having made a false declaration, then that should be investigated by law enforcement, said Eric Cheung, a law lecturer at the University of Hong Kong.
     “This is not rule of law, it is rule of man,” he said. “You should never give such power to a particular civil servant, then have the civil servant bypass the procedures.”... Click here to read the full article.

Hong Kong Economic Journal
3 August 2016
Several law experts said Edward Leung Tin-kei (梁天琦), a prominent member of the localist group Hong Kong Indigenous, should not be deprived of his right to run in the Legislative Council election next month since he has met the new requirement set by the Electoral Affairs Commission (EAC) for candidates, the Hong Kong Economic Journal reports.
      Johannes Chan Man-mun, former law dean and now a law professor at the University of Hong Kong, told HKEJ that an electoral officer has no right to make her own judgment and question Leung’s stance after he signed a new confirmation form committing him to uphold the Basic Law and accept Beijing’s sovereignty over Hong Kong.
     In the first place, Chan said, the new requirement has no legal basis and Leung was not given a chance to defend himself before his disqualification.
     Chan said the electoral officer, in barring Leung from the Legco race, might have violated the Basic law, Hong Kong’s mini-constitution.
     Eric Cheung Tat-ming, principal lecturer at the HKU Department of Law, agreed with Chan, saying electoral officers should base their decision only on whether or not a candidate has fulfilled all the requirements for running in the election.
     A source in the government said returning officers base their decision not only on whether candidates have signed the new confirmation form but also on their words and actions in the past... Click here to read the full article.

Hualing Fu Interviewed on Chinese Lawyer's 7-Year Sentence (WSJ)

"Chinese Lawyer Sentenced to Seven Years in Prison"
Josh Chin
The Wall Street Journal
4 August 2016
A Chinese court sentenced a lawyer whose firm is known for taking on politically sensitive cases to seven years in prison, in what a former colleague said was an unexpectedly harsh sentence, signaling that Beijing intends to keep squeezing the already constricted space for dissent in the country.
     The lawyer, Zhou Shifeng, was a target in a government sweep a year ago in which roughly two dozen lawyers and activists were arrested and more than 300 others briefly detained or interrogated. That began an offensive against what was once a growing human-rights movement among Chinese lawyers.
     Appearing in court on Thursday in the city of Tianjin, Mr. Zhou was the first lawyer among those arrested to face trial. He was sentenced to seven years after he pleaded guilty to subverting state power, according to the official Xinhua News Agency... 
    Mr. Zhou’s sentence suggests other arrested lawyers will face similar punishment. It also indicates authorities’ concern over the influence of lawyers as Chinese President Xi Jinping pushes a broad crackdown aimed at stifling challenges to the Communist Party’s authority.
     “If you look at the landscape of resistance, you don’t see many other people left,” said Fu Hualing, a law professor at Hong Kong University. “Falun Gong is pretty much gone. The only ones that can stand up to the government are the lawyers. They have the organizing power, so they pose a threat.”... Click here to read the full article.

Thursday, August 4, 2016

Marcelo Thompson on Responsible Communications by Internet Intermediaries (LSE Blog)

"Responsible Communications by Internet Intermediaries"
Marcelo Thompson
LSE Media Policy Project Blog
8 July 2016
In debates concerning Internet intermediary liability, an often-expressed view is that intermediaries (such as Facebook and Google) shouldn’t be turned into adjudicators, who reason and decide about the legal or illegal nature of content they host, and thus about whether or not to take such content down. But is that a plausible view?
     Intermediaries, after all, necessarily must and will make such decisions in one way or another. Once notified of the existence of content that violates people’s privacy, reputation, or children’s rights, can intermediaries avoid weighing those rights against freedom of expression and vice-versa?
     Sure, we could compel intermediaries to defer everything to the courts. Yet, courts don’t work in Internet time, geography, or economy. The consequence would be that, with content remaining online, freedom of expression would always win, and other rights lose.
     But there is a second reason why we wouldn’t want to defer everything to courts. Isn’t it at the very core of any activity to make decisions that are central to it? And what is more central to being a host than making decisions about … hosting? Remove the reason element from any practice and we are left with a rather impoverished expression of it.
     The real problem with Internet intermediaries isn’t having private actors making legal decisions. We all make decisions about right and wrong all the time, and the law is, ultimately, a living expression of the multitude of these decisions. The real problem with Internet intermediaries is rather how, with what diligence, public spirit, and, indeed, responsibility they make the decisions they make.
     Yet, a concern with this ‘how’ is nowhere to be found in existing liability regimes. Rather, these regimes rely on arbitrary, outcomes-based approaches that entirely do away with reason. Their focus is placed on the – however wrongful – legally automatic tilting of the takedown scale to favour rights on one side or another, rather than on the reasoning processes through which the scale tilts... Click here to read the full article.

Tuesday, August 2, 2016

Sherif Elgebeily on the Hong Kong Election Confirmation Form Issue (SCMP)

Sherif Elgebeily
South China Morning Post
2 August 2016
Last weekend, the Electoral Affairs Commission decided to invalidate the candidacy of Hong Kong National Party member Chan Ho-tin for the upcoming Legislative Council election. The exact reasons behind this are unclear, but other candidates who also refused to sign a newly imposed declaration form have yet to receive notice on the validity of their candidacies, fuelling concern.
     The pledge to uphold the Basic Law is a fundamental part of the eligibility for candidacy, as outlined on the nomination form; it is for this reason that the ineligibility of Democratic Progressive Party of Hong Kong’s Yeung Ke-cheong – who refused to sign the nomination form itself – is legally valid.
     Should Chan have been disqualified?  On one level, the additional declaration form is obsolete, as it simply duplicates existing obligations. Worse, it also appears to contravene both the rule of law in Hong Kong and the Basic Law in its effect.
     First, there is no legal basis for the demand of an additional form, and the invalidation of candidacy on these grounds is beyond the powers of the commission. Any reference to such a form is absent in the law governing the election procedure; moreover, an exhaustive list of requirements for nomination is provided for under Section 40 of the Legislative Council Ordinance. Any legally enforceable declaration or criteria for the nomination of individuals would require amendments of the existing law, a path which has not been followed... Click here to read the full article.

Saturday, July 23, 2016

Michael Davis Bids Hong Kong Farewell (SCMP Interview)

"Rights campaigner bids Hong Kong a reluctant farewell"
Jeffie Lam
South China Morning Post
23 July 2016
When Professor Michael Davis landed in Hong Kong from his home in Hawaii to take up a job at Chinese University teaching politics more than 30 years ago, the human rights law expert may not have realised he could not have picked a more fascinating destination for his research interests. Over his three decades in Hong Kong, Davis has witnessed – and participated in – numerous social movements. He took part in protests backing the pro-democracy drive by Beijing students in 1989, the campaign to oppose a ­controversial national security bill in 2003, and the marathon debates on the city’s constitutional reform that eventually triggered the Occupy sit-ins of 2014 among many other movements. Davis, whose ­graduated students have fanned out across the city and political spectrum to pursue careers, will retire from the University of Hong Kong’s law school and move to Washington in the United States this ­summer for a fellowship with the National ­Endowment for Democracy, a non-profit ­organisation. Ahead of his reluctant departure, he shares with the Post his views on stagnant political ­reform, unseen pressures on academia and his love of the city he has spent half his life in... Click here to read the full interview.

Thursday, July 21, 2016

Syren Johnstone Analyses the Tribunal's Decision in Moody's Red Flags Case

"A Red Flag for Hong Kong Credit Ratings"
Syren Johnstone
AIIFL Working Paper No. 18
July 2016
Abstract: In July 2011 Moody's Investors Service Hong Kong issued a report that used a system of red flags to highlight corporate governance and accounting risks in a specified population of listed companies. Although Moody’s did not consider the report a credit rating, the Securities and Futures Commission, and the Securities and Futures Appeals Tribunal in its March 2016 determination, regarded the issuance of it as part of Moody’s regulated activity as a provider of credit rating services. As such, Moody's was held subject to regulatory codes of conduct it was said to have breached, and was consequently disciplined. Moody's has since appealed that determination, which will bring the case before the Court of Appeal. 
     This paper undertakes a detailed legal analysis of the Tribunal’s determination. It suggests the Tribunal’s purposive approach to legislative interpretation is flawed, and its determination impaired by the way the Tribunal has framed the syntax of its reasoning and has conflated important distinctions between credit risk, creditworthiness, credit ratings and the methodology used to produce a rating opinion. Other legislative provisions relevant to the publication of information are reviewed and it is noted there is no lacuna in Hong Kong’s law that would necessitate the approach taken by the Tribunal to address the perceived wrongdoing. Whether the Tribunal’s interpretation of the law is necessary or consistent with the policy intent of the Legislature is queried. 
     The ramifications of a Court of law upholding the Tribunal’s determination are considered. Locally this includes blurring the perimeter around regulated and unregulated activities and the possible creation of an uneven playing field. Of particular significance for Hong Kong’s credit rating industry, it may create uncertainties as to whether Hong Kong would remain an equivalent jurisdiction for the purposes of recognition under European Union regulations. The paper concludes with a brief consideration of the regulatory approach to managing the introduction of a new regulatory regime.  Click here to download the paper.

Wednesday, July 20, 2016

HKU Law Scholars on the 'Confirmation Form' Issue in the Legislative Council Elections 2016

Karen Cheung
Hong Kong Free Press
19 July 2016
Legal scholar and Basic Law Committee member Albert Chen Hung-yee says that there are grey areas in the law regarding the consequences for a Legislative Council election candidate who signs a declaration promising to uphold the Basic Law and then violates it.
     On a Monday RTHK show, Chen discussed a declaration that candidates are required to sign, which promises to uphold the Basic Law and to pledge allegiance to the Hong Kong Special Administrative Region. Chen said that it has not been clearly stated what the legal consequences are if a person signs and then violates the declaration. “Under current laws, there are no clear requirements, so it is a grey area.”
     Chen also said the existing laws do not require every candidate to sign a declaration, so the signature is an administrative arrangement. Therefore, it does not mean that all candidates who do not sign the declaration will not be able to get an effective nomination, he added.
     “It depends on the situation – if one has been advocating for Hong Kong independence and they refuse to sign the declaration… then the electoral officer may question whether the candidate is qualified to run,” Chen said...  Click here to read the full article.

Newswrap, RTHK Radio 3
19 July 2016
An associate dean at the University of Hong Kong’s Faculty of Law, Professor Simon Young, says elections laws make no reference to a form requiring potential Legislative Council election candidates to declare that Hong Kong is part of China. He says the assertion by the chairman of the Electoral Affairs Commission, Mr Justice Barnabas Fung, that it was merely introduced for administrative convenience, tends to play down the issue. Young tells Jim Gould that the form is redundant and has no legal force. Click here to listen to the interview.

Owen Fung & Tony Cheung
South China Morning Post
17 July 2016
At least 10 pan-democrat or independent hopefuls challenged a change to election rules, despite the risk of being disqualified, as the nomination period for the Legislative Council polls in September opened on Saturday.
     The controversial change targeting independence advocates required that candidates, as well as making the standard declaration to uphold the Basic Law, must also have to sign a new form to confirm a clear understanding of the mini-constitution – mainly concerning Hong Kong’s status as a special administrative region of China. Refusal to sign could risk disqualification.
     Pan-democrats complained that the new rules amounted to political censorship and planned to meet the chief of the city’s election watchdog over the matter on Tuesday... Rao said although the Basic Law did not explicitly prohibit independence advocates from running for Legco, “since the mini-constitution affirmed Hong Kong’s legal status, how could it allow a lawmaker to advocate the city’s separation from the nation?”
     But University of Hong Kong law professor Benny Tai Yiu-ting told the Post that candidates do not need to sign the form.
     “Electoral officers do not have the power to invalidate a candidate’s nomination simply because he did not sign the new form,” Tai said... Click here to read the full article.

David Tweed
15 July 2016
Candidates for Hong Kong’s Legislative Council elections will be required to sign a form saying they understand the city is an inalienable part of China, the latest bid by the government to deter candidates who advocate independence.
     Contenders for in the Sept. 4 vote must declare they uphold the Basic Law, the city’s mini-constitution. They will now need to sign a further form confirming they fully understand the Basic Law articles that detail the city’s position as an administrative region of China, the election commission said on Thursday in a statement.
     “Anyone making a false declaration in the nomination form is liable to criminal sanction,” the commission said.
     “The government is obviously targeting candidates that are running on an independence platform,” said Michael Davis, a professor of constitutional law at Hong Kong University. “Even if someone signs the confirmation acknowledging the government’s interpretation, it would still be subject to question in the courts.”... Click here to read the full article.

Tuesday, July 19, 2016

Michael Davis on Damage Control After the South China Sea Arbitration Award

"Why Beijing should seek damage control following the South China Sea decision"
Michael Davis
South China Morning Post
19 July 2016
It is time to get realistic over the South China Sea arbitral decision. Chinese officials and their supporters have made this case out to be some gross overreaching by the arbitral tribunal constituted under the United Nations Convention on the Law of the Sea.
     A better view is that the tribunal properly exposed some serious violations that China ought to correct both for its own reputation and for the sake of the natural environment. At the same time, it offered a platform for negotiating a reasonable settlement. The following 10 points are worth considering.
      First, we should appreciate that China signed on to the UN convention for good reason. Not traditionally a maritime power, the treaty offered China expanded rights in adjoining territorial seas, exclusive economic zones and the continental shelf, which would be rich in fisheries and minerals. Substantially hemmed in by its neighbours, China surely saw great advantage in embracing such treaty.
     Second, by agreeing to the treaty, China agreed to the associated arbitration that has just taken place. If China refused to appear, the tribunal was required to proceed without it and was bound to consider as best it could what it judged to be China’s arguments.
      Third, by refusing to appear, China waived its right to participate in selecting the five judges for the arbitration... Click here to read the full article.

Saturday, July 16, 2016

Melissa Loja on the Full Significance of the South China Sea Arbitration Award

It is important to bear in mind the underlying theory of the Philippines' submissions in order to appreciate the full significance of the conclusions of the Tribunal in the Final Award of In The Matter of an Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, Final Award, 12 July 2016. According to the Philippines the legal basis of its claims to certain features and waters in the South China Sea is the United Nations Convention on the Law of the Sea (UNCLOS, Articles 76 and 77), not territorial title. For this legal basis to exist the following conditions must obtain:
  1. The features being claimed are found within the Exclusive Economic Zone (EEZ) of the Philippines. 
  2. These features are not encompassed by the maritime zones of any other feature in the Spratly Islands.
  3. These claimed features are low tide elevations.
The Philippines asked the Tribunal to declare that all three conditions obtain and that legal basis exists for its claim to Mischief Reef, Second Thomas Shoal, McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South).
     The Tribunal declared that all the claimed features are found within the Philippine EEZ, although Gaven Reef falls outside by a few metres. It found no feature in the Spratly Islands able to generate an EEZ which would encompass the claimed features. Mischief Reef and Second Thomas Shoal are low tide elevations but McKennan Reef is a high tide elevation; Hughes Reef is a low tide elevation but it forms a single unit with McKennan Reef; Gaven Reef (North) is a high tide elevations; and Gaven Reef (South) is a low tide elevation but it forms a single unit with Gaven Reef (North). 
     The significance of the foregoing findings is that the first condition obtains for all the claimed features, but the second condition obtains for Mischief Reef and Second Thomas Shoal only and not with respect to McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South). The third condition obtains for Mischief Reef and Second Thomas Shoal but not for McKennan Reef in relation to Hughes Reef and Gaven Reef (North) in relation to Gaven Reef (South), which are high tide elevations with 12 nautical mile territorial sea. Moreover their territorial sea overlaps with the Philippine EEZ. 
     In effect, the Tribunal found that the Philippines has legal basis to claim Mischief Reef and Second Thomas Shoal but it has no legal basis to claim McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South). Having no legal basis to claim McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South), the Philippines is out of contention for these features and only China and Vietnam are the remaining claimants. However, in order for China and Vietnam to avail of the foregoing claims they have to accept the attribution of Mischief Reef and Second Thomas Shoal to the Philippines in the Final Award. 
      The Final Award declared that Scarborough is a rock and that fishing on Scarborough is a traditional right of both Filipinos and Chinese fishermen. The Final Award  did not declare that the Philippines owns Scarborough or that its fishermen alone can fish there.  These traditional fishing rights will be preserved no matter the outcome to the future settlement of the territorial dispute over Scarborough. The Final Award did not touch upon any other feature in the Spratly Islands, except to declare them rocks with 12 nautical mile territorial sea. It did not award any major feature to the Philippines.  It is possible that, in relation to Thitu, etc., in the future China and Vietnam will hold the Philippines to the conditions underlying its claim to features in the South China Sea. China and Vietnam might argue that the Philippines is estopped from changing its legal position (and its underlying conditions), especially as the Philippines' claims to all the features arose  from the same act - Presidential Decree 1596 - and invoked the same basis - contiguity or EEZ. However, before they could effect an estoppel against the Philippines in this way, China and Vietnam would have to accept the attribution of Mischief Reef and Second Thomas Shoal to the Philippines in the Final Award.  Written by Ms Melissa Loja, PhD candidate in the Faculty of Law, The University of Hong Kong.

Tuesday, July 5, 2016

New Book: The Integrity of Criminal Process (Hart Publishing)

The Integrity of Criminal Process: From Theory into Practice
Editors: Jill Hunter, Paul Roberts, Simon NM Young, David Dixon
Hart Publishing
July 2016, 448 pp
Description: Criminal proceedings, it is often now said, ought to be conducted with integrity. But what, exactly, does it mean for criminal process to have, or to lack, 'integrity'? Is integrity in this sense merely an aspirational normative ideal, with possibly diffuse influence on conceptions of professional responsibility? Or is it also a juridical concept with robust institutional purchase and enforceable practical consequences in criminal litigation? The 16 new essays contained in this collection, written by prominent legal scholars and criminologists from Australia, Hong Kong, the UK and the USA, engage systematically with - and seek to generate further debate about - the theoretical and practical significance of 'integrity' at all stages of the criminal process. Reflecting the flexibility and scope of a putative 'integrity principle', the essays range widely over many of the most hotly contested issues in contemporary criminal justice theory, policy and practice, including: the ethics of police investigations, charging practice and discretionary enforcement; prosecutorial independence, policy and operational decision-making; plea bargaining; the perils of witness coaching and accomplice testimony; expert evidence; doctrines of admissibility and abuse of process; lay participation in criminal adjudication; the role of remorse in criminal trials; the ethics of appellate judgment writing; innocence projects; and state compensation for miscarriages of justice.

"Introduction: Re-examining Criminal Process Through the Lens of Integrity"
Paul Roberts, Jill Hunter, Simon NM Young and David Dixon
This book explores the relationship between integrity and criminal process. By ‘criminal process’ we mean, roughly speaking, the institutions, procedures and practices constituting official responses to suspected criminal wrongdoing, encompassing criminal investigations, prosecutions, trials, appeals and extraordinary post-conviction procedures. We do not extend our analysis to ‘the penal system’ and the treatment of convicted offenders, largely on pragmatic rather than theoretical grounds. The book’s central thesis is that ‘integrity’ offers a powerful conceptual lens through which the criminal process in its entirety, or selected phases or aspects of it, can be viewed and critically re-examined. Our general approach could in principle be extended to penality at large, but we had to stop somewhere to keep the volume within reasonable bounds, and adjudication marks a natural temporal break- point, distinguishing the participation of suspects, victims, witnesses and the accused in the investigative process and at trial from the treatment of convicted offenders in the penal system...

"A Public Law Conception of Integrity in the Criminal Process"
Integrity has become a prominent theme in current discourse on the criminal process. It is referred to in cases involving police or prosecutorial misconduct. Courts increasingly make reference to integrity as a ground for ordering relief against and for the government. Integrity lies at the heart of the entrapment and abuse of process doctrines. What more can be expected of the integrity principle will depend on a proper understanding of its scope and meaning. The principle is said to be ‘an influential but also a puzzling principle of criminal justice’. What is the relationship between integrity and human rights? And what is its relationship to notions such as public confidence in the administration of justice, disrepute, accountability and legitimacy? Does it mean anything more than having minimum standards of conduct (and if so, when and in what context), and again is this anything different from a rights-based approach to criminal process? Does it refer to having coherence in the system and if so, coherent by what underlying premises?...

"Integrity, Immunity and Accomplice Witness Testimony"
The use of immunised accomplice witnesses by the prosecution has long been a feature of criminal trials in England and those jurisdictions such as Hong Kong which adopted the English criminal justice system. This practice has been disparaged as ‘unsavoury’ and ‘distasteful’, even ‘unethical’, but ‘turning Queen’s evidence’ in return for immunity from prosecution has been regarded as a ‘necessary evil’ and legally sanctioned as an essential tool in the fight against serious crime. This is particularly true of those forms of criminal activity which normally take place in secrecy, such as trafficking in dangerous drugs, terrorism, fraud and—the subject of this chapter—corruption-related offences...

"Stays of Prosecution and Remedial Integrity"
It is well established in the United Kingdom, Australia and Hong Kong that where a court finds there has been an abuse of process by the prosecution it has an inherent power to order the criminal proceedings to be stayed permanently. A stay of proceedings may be permitted on two bases. An application may be made on the basis that a fair trial is not possible (for reasons such as pre-trial publicity or delay), or on the much rarer basis that whilst a fair trial is possible the application for a stay should be granted anyway as the criminal justice system would otherwise be affronted. This chapter focuses on the latter kind of stay...

"Excluding Integrity?  Revisiting Non-Consequential Justifications for Excluding Improperly Obtained Evidence in Criminal Trials"
This chapter revisits non-consequentialist justifications for excluding a piece of reliable evidence which is improperly obtained (say, through torture or an illegal search) in criminal proceedings. By non-consequentialist justifications, I refer to principles which claim that the improperly obtained evidence should be excluded even if by doing so we do not produce any further good contingent consequences such as deterrence of misconduct by investigatory agents. The two most prominent non-consequentialist justifications offered in the literature are the protective principle and the integrity principle...

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