Thursday, December 3, 2020

Amanda Whitfort Featured in "How the Illegal Trade in Endangered Wild Animals could be Curbed by a Law Change in Hong Kong" (SCMP)

"How the illegal trade in endangered wild animals could be curbed by a law change in Hong Kong"
13 November 2020
Seizures of smuggled wild animals are so big in Hong Kong that they are measured in the tens of tonnes. In 2019 alone, according to government figures, 30 tonnes of endangered species – live birds, insects, reptiles, fish and mammals – were seized. The figures exclude animal parts such as ivory and pangolin scales, and the wood of endangered trees.
      Despite the huge volumes involved, law professor Amanda Whitfort says the situation is “the elephant in the room that nobody wants to see”.
     “Wildlife crime in Hong Kong has been severely under-punished,” says the barrister and environmental law expert at the University of Hong Kong.
     “Ridiculously low sentences have been handed out; they do not act as deterrents. And we have never, ever had a prosecution in Hong Kong that goes beyond the mule. We only get the guy who got paid a few hundred dollars, along with his ticket to Hong Kong. He is immediately replaced with someone else.

Whitfort says that when a suspected wildlife trafficker is apprehended in Hong Kong, the trail usually goes cold.
      “The suspect has the right to remain silent, and so he refuses to answer questions and provide information about who hired him to move the contraband into and through Hong Kong,” she says. “Investigators do not routinely pursue the financial investigations necessary to find out who is behind the shipment. The trail of investigation stops, the result is a light sentence – focused on the mule.”
      Treating wildlife crime as an organised and serious crime under the law would change that, says Whitfort, because coercive powers of investigation currently reserved for serious crimes such as drugs and weapons trafficking could be used.
     Investigators could use court orders to compel suspected wildlife smugglers to answer questions and force them to produce material, such as business records kept in Hong Kong or elsewhere, which could help establish the chain of people involved. Police would also have options if the trail led abroad.
     “Hong Kong has agreements for co-investigation with over 30 other governments, so the transnational nature of the crime can be combated through international cooperation in the tracing of assets and sharing of seized proceeds,” says Whitfort.  Click here to read the full text.

Tuesday, December 1, 2020

Jason Fee (LLB 2020) on Trust-owned Companies and the Irreducible Core of the Trust (Trusts & Trustees)

"Trust-owned companies and the irreducible core of the trust"
Jason Fee (LLB 2020)
Published in September 2020
Abstract: The recent Hong Kong Court of Final Appeal case of Zhang Hong Li v DBS Bank (Hong Kong) Ltd upheld the effectiveness of anti-Bartlett clauses. This gives rise to the question of whether a trust-corporate structure, coupled with a well-drafted anti-Bartlett clause, leaves any room for trust obligations. Through the lens of the law on trust-owned companies, this article thus seeks to reconceptualise the ‘irreducible core of trust obligations’. It argues that the irreducible core means the minimum duties which are necessary to preserve the integrity of the trust concept. It draws a distinction between core and mandatory duties, in that the ‘bells and whistles’ one adds in specific contexts may be mandatory duties reflecting appropriate policies, instead of core duties necessary for a trust to exist. It accordingly considers the proper content of the irreducible core, as distinguished from other mandatory duties.

Monday, November 30, 2020

New Issue: HKU Law's SSRN Legal Studies Research Paper Series (November 2020)

Vol. 10, No. 11: November 10, 2020

Governing Global Digital Finance
Aiaze Mitha, UN Secretary General's Task Force on Digital Financing of the SDGs
Simon Zadek, affiliation not provided to SSRN
Douglas W. Arner, The University of Hong Kong - Faculty of Law

When Email Fraud Meets VestingOrders
Lusina Ho, The University of Hong Kong - Faculty of Law
Alex C.H. Yeung, University of Oxford - Harris Manchester College

COVID-19 Emergency Measures andthe Impending Authoritarian Pandemic
Stephen Thomson, City University of Hong Kong (CityUHK) - School of Law
Eric C. Ip, The University of Hong Kong

Business Trusts in China: A Reality Check
Lusina Ho, The University of Hong Kong - Faculty of Law

CMEL Newsletter October 2020

CMEL is established jointly by the Li Ka Shing Faculty of Medicine and the Faculty of Law at the University of Hong Kong. Its primary vision is:

  • to become a focal point for international research excellence in the area of medical ethics and law;
  • to co-ordinate and provide teaching and training to university students and professionals;
  • and to promote and disseminate its expertise to the benefit of the public.
The Centre’s objectives are to promote excellence in the fields of research, teaching, knowledge exchange and professional training. The Centre will collaborate, as appropriate, with institutions, professional bodies and scholars in Hong Kong and internationally in order to pursue these objectives. CMEL has recently issued the latest newsletter. To view click: CMEL October 2020 Newsletter.

Sunday, November 29, 2020

Dr Daniel Matthews Featured in "The Sovereign State Feels the Heat" (HKU Bulletin)

"The Sovereign State Feels the Heat"
HKU Bulletin
Volume 22 No. 1
Published in November 2020
However you look at it, the modern state is ill-equipped to deal with the challenges of climate change.
Dr Daniel Matthews of the Faculty of Law is an admirer of English philosopher Thomas Hobbes, who defined sovereignty as it is commonly understood: escaping nature under the security and protection of the state through a social contract. Hobbes was writing 400 years ago and today, the cracks are showing.
     “Hobbes was extraordinarily creative in rethinking how we define political authority,” Dr Matthews said. “But even though sovereignty is back big time, with Brexit and the rise of populism being examples, I see that as a real dead end for dealing with the challenges of climate change. 
    “Climate change does not respect state borders and many of its effects are non-anthropocentric, impacting on a range of non-human forces and relations described by geology and ecology. Modern politics is really bad at being sensitive to these forces.” 
     Dr Matthews has been tracking these shortfalls as a scholar of the history and theory of sovereignty and sees problems in all three components that define sovereignty: territorial, populational and institutional.

     Getting people to see the world differently, both in the visual and contemplative sense, will not be easy. The COVID-19 pandemic offers a glimpse of the challenges. “We’ve seen a reassertion of national borders, concentration of power in the hands of the executive, greater emphasis on who gets the privilege of citizenship and who doesn’t. I fear we will see repeats of this in future climatic crises,” he said. 

     Dr Matthews hearkens back to Hobbes, who was also exploring how politics could be reorganised in a changing world. “This idea that we have to deny our attachments to the natural world in order to create a distinct political sphere is precisely what needs to be reversed. But the way things are going at the moment doesn’t make me massively hopeful,” he said.
     “Radical changes need to take place. It can’t be business as usual. Exactly how these changes will be instituted, no one knows. In my own work, I’m hoping to point out the limitations of the existing coordinates that define modern sovereignty and encourage critical and creative thinking about the changing nature of political authority in the context of climatic transformation.”
      The Aesthetics of Sovereignty in the Anthropocene will be published by Edinburgh University Press in 2021. Click here to read the full text. 

Friday, November 27, 2020

Call for Applications: HKU Law Global Academic Fellows 2021-2022 (Deadline: 1 January 2021)


Global Academic and Presidential Fellows

Department of Law

Applications are invited for three appointments as Global Academic Fellow in the Department of Law, to commence in August 2021 or January 2022, for a period of two years.

The Global Academic Fellows Programme was created to provide outstanding and aspiring legal academics with time and resources to transition into the global teaching market. Fellows will have access to an internationally leading faculty for mentorship, affiliation with related research centers, and funding for attending academic conferences to present their work. Other opportunities will include teaching appointees’ own course or gaining experience in core courses, and organizing funded academic conferences in their field. Applicants should have completed their doctoral degrees (JD or PhD) before the start of their appointments, unless they possess significant practice experience.

One to three fellows will be appointed each year, and will be expected to be in residence at HKU and devote their time primarily to their own research and preparation for entering the international teaching market. Fellows will be provided shared office space and administrative support when needed. Information about the Department of Law and the Faculty of Law can be found at:

Global Academic Fellows enjoy a highly competitive salary of 480,000HKD (~60,000USD/52,000EUR) in addition to annual leave, travel funds, relocation expenses and full medical benefits. At current rates, salaries tax does not exceed 15% of gross income.

Additionally, all shortlisted candidates will be nominated for HKU’s Presidential Post-Doctoral Fellowship. Each of these nominations potentially represents a 25% increase in salary, research funds and the optional extension of the fellowship for a third year. Address any specific questions to the Director at:

The University only accepts online application for the above post. Applicants should apply at Applications require the following 4 components: 1) an updated C.V., 2) a 3-page research agenda (including past, current and future projects), 3) a list of at least three academic references, and 4) a writing sample (under 50 pages).

Closes 1 January 2021.

Thursday, November 26, 2020

Review Essay of Henry Litton’s 'Is the Hong Kong Judiciary Sleepwalking to 2047?' (Richard Cullen)

Richard Cullen

During the British Hong Kong era, the Judicial Committee of the Privy Council (JCPC) in London acted as our paramount court (today replaced by the Court of Final Appeal (CFA)). In this role, the JCPC typically adhered to a society-based understanding of the operating context of the Common Law in Hong Kong.
     For around 150 years these were the essential guardrails within which the law worked in British Hong Kong. This was the Common Law system which was understood and spelled out for retention in the Joint Declaration, in 1984.[2]
     In 1991 we witnessed the enactment and application of the Hong Kong Bill of Rights Ordinance (BORO). This was one of the measures introduced by the British shortly prior to the 1997 handover, which aimed to build greater confidence within Hong Kong. The enactment of the BORO was the starting point of the fundamental reshaping of Hong Kong’s legal regime
     Henry Litton is a retired judge of the CFA, where he first became a Permanent Judge in 1997. He published a book in 2019 entitled, Is the Hong Kong Judiciary Sleepwalking to 2047?[3] This is a very important book because of its intense, highly informed observations on the reformatting of our legal system.
     Henry Litton has been a central legal figure in Hong Kong for many decades. He co-founded the Hong Kong Law Journal 50 years ago and had a successful career at the Bar (where he chaired the Bar Association seven times) before joining the Judiciary and rising to its highest levels. It is hard to think of someone better placed to comment, in depth, on the operation of the Hong Kong Judiciary. Apart from this seminal book, he is a regular, authoritative commentator on a range of legal and political topics of central concern in Hong Kong.
     Litton addresses contentious issues and takes robust positions. He has attracted a number of strong critics from the US and within Hong Kong. Most censorious are practitioners who applaud the way the role of the Judiciary in Hong Kong has been transformed over the last 30 years as it has increasingly deployed its power to run an elaborate human rights ruler over a widening range of aspects of governance and ordinances. Judicial activism is acclaimed. Some critics believe, for example, that as the HKSAR Judiciary ought to have the legal right to strike down various provisions in the new National Security Law it follows that it surely must have this legal power.[4]
     The lucid gist of Litton’s arguments is arresting. A bedrock position advanced is that the Common Law we have is the Common Law of Hong Kong. In each place, the law is developed by applying long-established legal principles and understanding to concrete, fact-based disputes, which arise in and are resolved within the broad context of any given Common Law jurisdiction. Influences may be taken into account from other jurisdictions - but there is no such thing as International Common Law. 
     For around 150 years, prior to its enactment, the British took the view no such law as the BORO was needed in Hong Kong. Today the BORO is recognized within the Basic Law where it pairs with the rights protected in Chapter 3 of the Basic Law.
     In 1992, in the Sin Yau Ming case,[5] the pronounced impact of the BORO on the previous mode of case-based decision making was signaled. In 1993, in the Lee Kwong Kut case,[6] Lord Woolf, speaking for the JCPC, foreshadowed the dangers inherent in this change, with its powerful emphasis on making the Government justify certain laws according to a complex series of judge-made proportionality tests drawn from Canadian case law. Briefly, Lord Woolf warned that the BORO could cause disputes to get out of hand and become a source of injustice if it were imposed inflexibly. He advocated that in most cases the courts should continue, essentially as before, to strike a balance between individual rights and the public interest.[7]
     This penetrating warning was roundly criticized by those favouring enhanced judicial activism and the application of a paramount level of proportionality testing.[8] The critics won and their approach has gathered impressive momentum over the last several decades. These developments have assisted the project to reshape the estimable concept of judicial independence into a form of lawyer-energized, judicial supremacy. It is key aspects of this development which have drawn the most trenchant criticism from Mr Litton.
     In his book, Litton has documented the erosion, in stark dismaying detail, of the previous, definitive adherence to common sense, fact-based decision-making in Hong Kong courts. This original approach, he says, has given way to massively over-argued, theory-based (not least and confusingly from the European Union) overlong legal decision-making, which, at great (usually public) cost, regularly fails to deliver fitting decisions. Much of this involves Judicial Review applications funded by Legal Aid. Lawyers lead and the judges follow, when, in fact, the judges should be saying, time and again, that there is no proper case to argue. By allowing themselves to be led, Litton contends, judges are surrendering their own judicial independence, step by step, to the lawyers arguing before them.[9] Compounding the calamity is the fact that so many of these judgments fail the translatability test – into Chinese.[10]
      Moreover, judgments are regularly emerging from this process which test Beijing’s predisposition to use – or not to use - the interpretation power in Article 158 of the Basic Law.[11]
      Another question implied by the analysis in this book, briefly stated, is: what has gone wrong with universalism? That is, how has it come to pass that the global project of employing highly legalized means to protect human rights (according to the doctrine of universal rights) has produced regular adverse outcomes? 
     I am not devaluing the importance of protecting rights. But I do wish to highlight the consequences of using very powerful, universalized legal means to secure them. No matter how well intentioned this mission may be, we need to face the reality that this project can produce significant and enduring, undesirable consequences when employed ardently, based on claimed universal norms superimposed on a material local context.
      Those who strongly favour the maximum protection of universal individual rights by legal means, would say no such thing has happened and that this maximum protection will always work to secure the greater public good: individual rights are paramount and they trump other concerns in order to create a better society for all. 
      We can see, however, with the unfolding of the COVID pandemic, for example, that this argument does not stand up – universally. In such a medical emergency, those determined to exercise and protect their individual rights (to mingle as they wish without any mask) amplify a too often deadly health risk for the entire community. The United States, with around 13 million cases and over 260,000 deaths – and both figures rising – plainly shows how grim such adverse outcomes can swiftly become.[12]
     But how truly universal is this doctrine in the first place? The modern, legalized calibration and enforcement of individual human rights is a comparatively recent formulation which was crafted, in detail, after World War II. It was purposefully labelled (by Western-focussed jurists) as a universal solution, which could – and should – be applied globally, the better to strengthen its power and legitimacy.
     However, this was a Western solution to an existential crisis in Western Civilization which had developed over many centuries. The Western Roman Empire made Christianity, headquartered in Rome, the official State Religion in 380 AD. After that empire broke up about 100 years later, Europe steadily separated into an outsized number of feudal Kingdoms which regularly spent much time at war with one another. This level of warfare intensified immensely after the profound 16th century split in the Roman Catholic Church at the time of the Protestant Reformation (subsequent to Europe’s intellectual Renaissance). The blood-letting which followed was staggering in scope and savagery.[13]
     The warfare continued as the Age of European Discovery and Imperialism began, with both discovery and warfare spurred on by remarkable breakthroughs in scientific and general understanding, as the Reformation gave way to the Enlightenment and then to the Industrial Revolution.[14]
     The crisis at the heart of Western Civilization truly came to head, however, in the 20th century: first with World War I and then, most horrifically, with World War II. The Nazi German regime systematically murdered over 6 million people for being Jewish or otherwise sub-human according to contemptible Nazi precepts.[15]
     How could Western Civilization, which had produced such extraordinary, world-changing art, literature, science and technology and the Enlightenment, descend to such a hideous level of mass human depravity? And what could be done to stop this ever happening again? A number of commendable measures were advanced to address this crisis, including the creation of the United Nations - and the formation of the modern doctrine of international human rights. 
     It is true that the US had long had a system of legalized rights protection in its constitutional Bill of Rights, since its ratification in 1791. The impact of that Bill was, until after World War II, very limited, however. The US had, for example, maintained a system, endorsed by the US Supreme Court, of highly discriminatory and often cruel segregation for Black Americans for around 100 years after the Civil War ended slavery in America: the Bill of Rights offered scant protection to these Americans.[16]
     The authoritative impact of the US Bill of Rights did, however, lift conspicuously by the 1960s as the Civil Rights movement gained robust political leverage.[17] And its legalized framework, - allowing for judicial enforcement of widely binding superior court decisions - provided the model for new, substantially legalized rights protection regimes in, for example, Canada, Western Europe, the UK, New Zealand – and, from 1991, Hong Kong. All these systems speak of universal rights which, according to leading practitioners, must be shaped in their definition and enforcement by international human rights law, drawn from Civil Law and Common Law jurisdictions, worldwide.[18]
      The English political philosopher, John Gray in his book Black Mass (2007) argues, with great force, that US-led, Missionary Liberalism insists that human rights are both universal – and must be universally respected.[19] They override the claims of Sovereign States. Gray, relying on a comprehensive historical-philosophical analysis, argues, in brief, that what he calls Liberal Imperialism has profound roots - along with far more savage, revolutionary movements like Nazism - in Western Enlightenment beliefs in the human capacity to guide and remake society, which in turn derive from earlier Judeo-Christian beliefs in apocalyptic (end of the world) cleansing and remaking or less drastic, early religious theories of utopian, societal recreation. Gray quotes George Santayana, the Spanish-American philosopher, who acutely noted how “Arrogance, fanaticism, meddlesomeness, and imperialism may masquerade as philanthropy.”[20]
      Apart from these deep concerns about the downside influence of doctrinaire, utopian social reformation theories sourced from within Enlightenment thinking and the particular, extended, very bloody, Western history underpinning the origins of the modern human rights doctrine, practical concerns also arise. A crucial operational flaw in the doctrine of international rights (recognized by Lord Woolf) is that, while it insists on an internationalized measure of acceptable legalization and protection, it provides very poor articulation of what to do when the exercise of certain rights by some has a grave impact on the rights of others, as regularly happens. This was a problem grimly encountered in Hong Kong in 2019. As an American academic recently noted, freedom from fear is the most basic of all freedoms. [21] This freedom, massively displaced in 2019, had been a singular hallmark of life in Hong Kong for decades before then.[22]
     Next there is the problem that, once a highly developed legalized human rights regime puts down serious roots in a given (especially Common Law) jurisdiction, one can expect lawyers to briskly put this regime to work. The prominent Canadian legal scholar, Michael Mandel, sharply noted the dangers arising from the “legalization of politics” in his principal book on the Canadian Charter of Rights. He characterized that document as “a dripping roast for lawyers”.[23]
     Hong Kong today provides measurable confirmation of Mandel’s insights. In short, Henry Litton makes a compelling case that the re-shaping of how the Common Law operates is bad for the HKSAR at two crucial levels. First, the practical, fact-based functionality of the law has been seriously compromised. Litton concludes his book by arguing that abstract principles of law derived from foreign jurisprudence have crushed the simple logic of the Common Law in Hong Kong.[24]
     Secondly, and more importantly, this Hong Kong incubated, adverse development of the law, shepherded by the Judiciary, poses a visible threat to the prospects of retaining the full essence of Hong Kong’s remarkable Common Law heritage over the long-term, well beyond 2047. Litton argues that collectively these vicissitudes spell “disaster as June 2047 gets ever closer.”[25]
     The way in which these profound changes in the operation of the Hong Kong legal system have been animated by the global project to advance the deployment of vigorously legalized, international human rights regimes is also plain to see.
     Henry Litton poses a crucial question in the title of his book: is the judiciary sleepwalking to 2047? He also introduces a pivotal question in the first chapter of his book: “The Basic Law gives effect to the ‘One Country Two Systems’ policy of the PRC which has held good for over twenty years: until the Hong Kong Judiciary itself, bit by bit, surrenders part of Hong Kong’s autonomy. Is this an exercise of judicial independence, or is it the betrayal of a constitutional trust?”[26]
     Hong Kong needs, today, to pay careful attention to both these questions – not least as the US pursues a policy of intensifying confrontation with China. This broader, grim geopolitical context cannot be ignored.[27] It may be time (notwithstanding George Bernard Shaw’s caveat[28]) for the application of some brute sanity.

[1] A short, earlier version of this review-article, entitled, “Is Hong Kong Judiciary sleepwalking to 2047 and beyond?”, was published in the China Daily, November 4, 2020.
[2] Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong – signed December 19, 1984.
[3] Litton, Henry, Is the Hong Kong Judiciary Sleepwalking to 2047? (Sherriff Books, Hong Kong, 2019) (hereinafter, Sleepwalking).
[4] See, for example, Cohen, Jerry, “Henry Litton’s Attack on Hong Kong Courts”, October 9, 2020, available at:
[5] R v Sin Yau Ming [1992] 1 HKCLR, 127.
[6] Attorney-General of Hong Kong v Lee Kwong Kut (1993) AC 951.
[7] Ibid. The essence of what Lord Woolf said was that,, while the Hong Kong judiciary should be zealous in upholding an individual’s rights, it was also necessary that disputes as to the effect of the BORO not be allowed to get out of hand. He added that, in order to maintain the balance between the rights of the individual and the public interest, rigid and inflexible standards should not be imposed on attempts to resolve the difficult and intransigent problems with which society is faced when dealing with serious crime. He also stressed the importance of local context and cautioned against using the complex proportionality test borrowed from Canada – which so strongly emphasizes individual rights - in most cases.
[8] A leading, powerfully argued example, is, Ghai, Yash, “Sentinels of Liberty or Woolf in Sheep’s Clothing? Judicial Politics and the Hong Kong Bill of Rights” (!997) Modern Law Review 459.
[9] Sleepwalking, 45.
[10] Sleepwalking, 25.
[11] Cheung, Tony, Zheng, William and Cheung, Gary, “’No other authority has right to make judgments’: China slams Hong Kong court’s ruling on anti-mask law as unconstitutional”, South China Morning Post, November 19, 2019, available at:
[12] See, for example, Paz, Christian, “All the President’s Lies About the Coronavirus”, The Atlantic, November 2, 2020, available at
[13] Gray, John, Black Mass (Penguin, London, 2007) 261.
[14] Ibid., Chapter 1, The Death of Utopia.
[15] Ibid., 89 ff.
[16] In Plessy v Ferguson (1896) 163 US 537, the US Supreme Court, in a 7:1 decision, approved a Louisiana State segregation law on the basis of the court’s “separate but equal” doctrine. This was not overturned until 1954, in Brown v Board of Education (1954) 37 US 483.
[17] See Brown v Board of Education (1954) 37 US 483 and subsequent cases.
[18] See, for example, Diakonia International Humanitarian Law Centre, International Human Rights Law, available at:
[19] Gray, John, Black Mass (Penguin, London, 2007) 228. A.S. Byatt calls this work, “wise, furious and informative.”
[20] Ibid.
[21] Tiezzi, Joanna, “Victoria Hui on Hong Kong’s Troubled Future”, The Diplomat, June 3, 2020, available at:
[22] Cullen, Richard, Hong Kong Constitutionalism: The British Legacy and the Chinese Future (Routledge, Abingdon, 2020, Chapter 7.
[23] Mandel, Michael, The Charter of Rights and the Legalization of Politics (Thompson Educational, Toronto, 1994).
[24] Sleepwalking, 212.
[25] Ibid.
[26] Sleepwalking, 69.
[27] See, for example: Editorial Board, “Stopping the descent into a new cold war”, Financial Times, October 9, 2020, available at:; Trevelyan, Laura, “Is the world entering a new Cold War?” BBC News, September 22, 2020, available at:; and Klare, Michael, “The New Cold War Is a Lot More Dangerous Than the Old”, Foreign Policy in Focus, November 1, 2018, available at:
[28] Shaw observed that: “Reformers have the idea that change can be achieved by brute sanity”, available at:

Friday, November 13, 2020

HKU-SCF FinTech Academy Awarded “Best Governance, Risk and Compliance Solution“ in TechChallenge 2020

to Professor Douglas Arner, Mr Brian Tang, and other teammates from Standard Chartered and HKU-SCF FinTech Academy on winning the Award for Best Governance, Risk and Compliance Solution in the inaugural “TechChallenge - Digitising Trade Finance” (TechChallenge).  The team proposed TradePro, a machine-learning model for trade finance inclusion for SMEs using internal and external datasets.  Recognition also goes to Dr Giuliano Costellano, who was a member of the Kozolchyk National Law (NatLaw) team shortlisted for the same problem challenge.
     Launched in August 2019, TechChallenge is a joint initiative of the BIS Innovation Hub and the Hong Kong Monetary Authority, designed to showcase the potential for new innovative technologies to resolve problems in trade finance (TradeTech). Winners were selected from 103 technology solutions submitted by applicants worldwide to three problem statements: (1) Connecting Digital Islands and Increasing Network Size and Effects; (2) Trade Finance Inclusion for SMEs; and (3) TradeTech for Emerging Markets. Besides the best solution to each of the problem statement, other awards were made to recognize outstanding solutions in different aspects. All 17 winners and runners-up were invited to showcase their submissions at the Hong Kong Fintech Week, which ran as a virtual event on 2-6 November 2020.  For more information, see the BIS's press release statement (2 November 2020) and the TechChallenge Showcase for the names of all the winners, runners-up and shortlisted participants.

New HKU Law Report on Wildlife Trade in Hong Kong (HKU Press Release)

23 Oct 2020
HKU Press Release
Unsustainable and illegal trade in wildlife threatens endangered and vulnerable species. The legislation and policies adopted by the Hong Kong government on both legal and illegal trade have significant impact on endangered species globally.
     Hong Kong is a wildlife trading hub. In 2018, Hong Kong SAR reported in the Convention on Trade in Endangered Species (CITES) Trade Database the import of over 350 CITES listed species from 36 territories, in over 40 different forms, ranging from live animals to whole skins and finished carvings.
     Half of rhino horn and tiger bone smuggling cases in China came through Hong Kong
In addition, reported wildlife smuggling cases prosecuted in Mainland China between 2014 and 2018 show that, in 50% of cases involving the smuggling of rhino horn and tiger bone, the contraband entered the Mainland via Hong Kong.

Wildlife offences need to be recognised as serious and organised under HK law
In order to effectively deter increasing levels of wildlife smuggling through Hong Kong, wildlife offences should be recognised as serious criminal offences under the Organised and Serious Crimes Ordinance, Cap 455. In addition, greater efforts should be made to combat the laundering of illegally caught animals through Hong Kong’s legal trade and improved traceability measures should be adopted to monitor the movement of live-traded animals.
     Commencing in 2017, Associate Professor Amanda Whitfort of the Faculty of Law and Dr Fiona Woodhouse, Deputy Director (Welfare) of the Society for the Prevention of Cruelty to Animals (HK), with the support of GRF Grant (No 17655316) provided by the University Grants Committee of Hong Kong, undertook a two year study of the effectiveness of Hong Kong’s laws and policies controlling trade in endangered and threatened species of animals. During the course of the study, 12 stakeholders representing government, academia, NGOs and the trade were interviewed about the effectiveness of the current framework. All agreed that the increasing volume of both legal trade and illegal smuggling of wildlife has made the current legislation difficult to enforce.
     The reviewers compared Hong Kong’s current legislation and policy on importing and possessing wildlife with the best practice in the EU, USA and Australia and made 38 recommendations to improve the enforcement and impact of Hong Kong’s laws and policies to control legal and illegal trade in endangered and vulnerable species. These include amending the Organised and Serious Crimes Ordinance to include wildlife crimes, identifying trades that are particularly vulnerable to the laundering of endangered species, developing specific action plans to combat offending and imposing strict identification controls to ensure the traceability through the supply chain of all live-traded animals.

Amendment of Cap. 586 was important but not sufficiently deterrent
In mid-2018, the Protection of Endangered Species of Animals and Plants Ordinance was amended to permit wildlife crimes to be prosecuted as indictable offences. However, wildlife crimes have yet to be regarded as serious crimes under the Organised and Serious Crimes Ordinance, despite multi-million-dollar (USD) wildlife smuggling seizures being recorded in the Territory.
     Between 2013 and 2019, seizures made by the Customs and Excise Department represented over HK$767 million in trafficked wildlife, including 22 metric tonnes of ivory, 70 metric tonnes of pangolin (the scales and carcasses of which are estimated to have involved the killing of over 138,000 pangolins) and 66 metric tonnes of other endangered species (mainly reptiles).

Despite increase in seizure volumes and values over the past decade, there has been no prosecution of wildlife smuggling networks in Hong Kong
Smuggling is a transnational activity, often involving well-resourced groups. However, despite the high value and volume of seizures, there is no specialised investigative team nor sufficiently robust legislation to investigate and prosecute such networks. The detection of seizures, though important, can be regarded as an indicator of the volume of illegal trade passing through Hong Kong, rather than a measure of success at limiting the trade.
     Despite Hong Kong’s increasingly large-scale seizures, particularly from shipping containers, no wildlife traffickers have ever been prosecuted for money laundering related offences and no syndicates indicted for wildlife smuggling. This is the direct result of the Hong Kong government’s continuing failure to recognise wildlife crimes as specified offences under the Organised and Serious Crimes Ordinance. Recognising wildlife crimes as serious crimes, like other trafficking offences, under the Organised and Serious Crimes Ordinance, would unleash the full force of investigative powers necessary to effectively combat Hong Kong’s increasingly serious wildlife trafficking problem. The study’s primary recommendation is therefore to amend the Organised and Serious Crimes Ordinance, Cap 455, to include serious wildlife crimes as specified offences.

Identifying trades at high risk for laundering
The study revealed significant concern that Hong Kong’s legal trade is being used for illegal activity. This has resulted from extremely limited traceability in the supply chain for most endangered species. Highly endangered species enter Hong Kong illegally in two ways: smuggling or laundering.

Hong Kong is a well-known smuggling hub for highly endangered and costly reptile pet species. Species without permits for entry are frequently discovered secreted inside luggage on airplanes, in the back of cross border trucks and in the holds of boats entering Hong Kong waters. Along with the obvious and serious animal welfare concerns associated with the smuggling of live animals, evasion of quarantine controls puts Hong Kong people and animals at risk of zoonotic disease outbreaks.

Where the imports of animals are declared, endangered and illegally smuggled species are often mixed together with legal species to evade identification by law enforcement authorities.
     Hong Kong imports up to a million reptiles annually for food and the pet trade, but the volume and current system make it impossible to determine how many of these animals are sold, consumed, abandoned or die in the trade. Once species have entered Hong Kong, loopholes in the current control regimes allow for easy laundering of animals through licensed traders. These loopholes result from the loosening of government requirements for possession licences in 2006 which have resulted in the numbers of applications for import licenses and possession licenses dropping by almost 90%, in 15 years. With import permits for controlled species now based on individual consignments, or keeping premises, import permits are no longer required for individual animals and the laundering of smuggled species has become much easier for criminals.

Improving traceability of live traded species
In the absence of individual possession licences which would help to identify individual animals, unscrupulous traders can claim wild-caught reptiles, birds and fish are the result of captive breeding or replace legally imported animals with those procured illegally, in breach of Hong Kong’s efforts to enforce the Convention on International Trade in Endangered Species (CITES).
    The AFCD has previously done extensive studies to evaluate traceability in the dog trade and the ivory trade, subsequently closing loopholes that had enabled widespread laundering in both trades.
    The reviewers suggest that traceability in the endangered species trade be similarly studied, so that all sales of controlled animals in Hong Kong can be traced back to a verifiable legal source for public health, conservation and welfare protection. In 2016, AFCD’s Animal Management Division rectified similar problems in the dog trade by amending Cap 139B Public Health (Animals and Birds) (Trading and Breeding) to require the origin and transfer of all imports, breeding and sales to be documented by traders. Similar controls should be put on the sale of live endangered species.

For the full report, please click here.  For related press coverage, see RTHK (2 Nov 2020).

For media enquiries, please contact:
Amanda Whitfort, Associate Professor, Faculty of Law, HKU (Email:
Melanie Wan, Senior Manager (Media), Communications and Public Affairs Office, HKU (Tel: 2859 2600 / Email:

Wednesday, November 11, 2020

New Volume of Hong Kong Journal of Law and Public Affairs on Militant Democracy and Constitutionalism

2020, Volume 2


The Government and Laws Committee, The University of Hong Kong (GLC) is pleased to officially unveil the Second Volume (2020) of the Hong Kong Journal of Law and Public Affairs (HKJLPA), the official annual journal of the GLC. The volume is titled “Militant Democracy and Constitutionalism”.

The Second Volume 2020 of the Hong Kong Journal of Law and Public Affairs, published in Fall 2020, is entitled “Militant Democracy and Constitutionalism”.
     The end of Cold War has once endowed the world with optimism that the End of History has finally arrived. However, the rise of populist leaders with little regard to democratic norms, authoritarians which harness the constitutional toolbox to subvert democratic processes and an unprecedented invocation of emergency powers to combat the COVID-19 pandemic have all but blossomed into a siege against Constitutional Democracies on a global scale. This timely Volume, situated against the backdrop of global constitutional backsliding, features essays from leading political scientists and constitutional scholars. It discusses one of the possible countermeasures of democratic self-defence that has existed since 1937 – militant democracy and militant constitutionalism.
     In addition, this Second Volume is graced with a case commentary on Miller (No.2), two interviews with leading constitutional lawyers Professor Andrew J Harding and Dr Tonio Borg, and two author interviews conducted with Professor Joel Colón-Ríos and Dr Eric C Ip on their new books. It ends, as usual, with a review of the Government and Laws Committee's initiatives and publications over the past academic year.


The Hong Kong Journal of Law and Public Affairs (HKJLPA) is the first English language studentedited journal in law and political science in East Asia, published by the Government and Laws Committee, The University of Hong Kong (GLC) since 2019, in restoration of the student-edited Hong Kong University Law Journal (1926-1927), founded by Professor George Keeton (1902-1989), the first Lecturer of Political Science and Jurisprudence and Reader of Law and Politics at HKU, and later Dean of Laws and Vice Provost at University College London (UCL).
     Supported by an International Editorial Advisory Board consisting of distinguished scholars, HKJLPA publishes articles in the English language from researchers, teachers, practitioners, and students all over the world. It accepts submissions in all areas broadly related to the intersection between law and politics, including but not limited to comparative constitutional law and politics, international law and relations, jurisprudence and political philosophy, and administrative law and public administration.
     As the GLC’s flagship publication backed by the HKU Government and Laws Programme, HKJLPA is committed to promoting a stronger understanding of cutting-edge issues that lie at the nexus of law and politics at the international and domestic levels, and to offering a robust platform for the exploration of ideas that will guide how societies are organised and governed.

Tuesday, November 10, 2020

Anna Dziedzic on Micronesia (Federated States of Micronesia): Uniting a Federal Archipelago (new book chapter)

Abstract: The Federated States of Micronesia (FSM) comprises 607 islands spread across a large ocean area in the western Pacific Ocean. The federation was established in 1978 when four districts of the Trust Territory of the Pacific Islands, administered by the United States, came together. In 1986, the independent state of FSM entered into a Compact of Free Association with the United States, an arrangement that, in its current form, will continue till 2023. FSM’s federal system contains several innovative features tailored to its history, the culture and traditions of its Indigenous peoples; its island archipelago geography; and its position as a small island developing state. This chapter describes the history and development of the FSM, the legal and institutional features of federalism, and recent political dynamics, including calls for greater decentralization and secession.

Monday, November 9, 2020

Alex CH Yeung and Jason Fee on Limiting the Fiduciary’s Account of Profits: But-for Causation? (Trusts & Trustees)

Alex C H Yeung (BBA(Law) 2020) & Jason Fee (LLB 2020)
Published in October 2020
Trusts & Trustees
Abstract: In an account of profits for breach of fiduciary duty, courts have understandably required some form of nexus between the breach and the gains to be disgorged, but have otherwise struggled to articulate a precise test. In the recent case of UVJ v UVH, the Singapore Court of Appeal broke new ground by requiring but-for causation, apparently branching off from the Anglo-Australian jurisprudence which advocates a more liberal approach to causation. While the but-for test is practically appealing as a technique well known to various areas of law, this article seeks to assess the normative justifications for such a bold move, in view of the attendant issues of deterrence, the unique policy of fiduciary law, and the juridical nature of an account of profits.

Ziyu Liu on Security Review in the Evolution of Foreign Investment Law with Chinese Characteristics (Business L Rev)

Ziyu Liu (PhD candidate, supervisors: Yun Zhao and Xianchu Zhang)
2020, Volume 41, Issue 5, pp 172–179
Abstract: When the Foreign Investment Law of China was adopted on 15 March 2019, security review was emphasized as an essential layer governing inward foreign investments, which had evolved from national security concerns embedded at market access review for foreign-invested enterprises (FIEs) and projects, security review for mergers and acquisitions. This article studies the evolution of China’s security review in foreign investment and finds that both changing focuses on identifying national security in China’s socialist market economy and the institutional struggle in certain central ministries addressed by the Chinese Communist Party (CCP) have in fact affected the evolution of security review in the Foreign Investment Law (FIL) with Chinese characteristics.

David Law Featured on The Pulse on the US Presidential Election 2020 (RTHK TV)

6 November 2020
Sir YK Pao Professor, David Law, and City University's Sean Kenji Starrs, joined host, Stephen Vines, to discuss the US elections on The Pulse (RTHK) on Friday, 6 November 2020.  The panel discussed the preliminary results from the election count, the design of the US electoral system, the thinking of the electorate, the implications of a Biden presidency for international relations, and lessons for Hong Kong and Mainland China.  Click here to watch the episode.

Sunday, November 8, 2020

RTHK Features Johannes Chan's Award Winning Book on The University

10 October 2020
Books intervene in society, and the author defends value with words. Reading makes people reflect on what is right and wrong. The two award-winning books introduced in this episode are closely related to the present.
An ideological struggle: "Our Golden Age" 
Professor Zhou Baosong 
In the past ten years, Hong Kong has entered an era of resistance. Many people have taken to the streets to protect their beliefs. In the book, Professor Zhou records the deeds of these protesters and the values ​​behind the social movements, and explores the importance of these values ​​from different angles. By interpreting the current era, we can connect ourselves to the world, inject strength into our thoughts, and give meaning to life, thereby changing ourselves and the world.

University is the conscience of society: "The Right Way. University-written after the storm" 
Professor Johannes Chan
This book is a collection of articles published by Professor Chan in recent years. The content focuses on university and culture. It talks about ideal university education, and hopes that readers will rethink the value of universities and the mission of intellectuals. This book also records the turmoil in the appointment of the vice-principal of the University of Hong Kong. It allows us to experience the author's mental journey in the face of adversity while still adhering to principles through words, and brings a glimmer of hope to us in the great age.

Tuesday, November 3, 2020

Zoom Book Talk on "MAKING HONG KONG CHINA The Rollback of Human Rights and the Rule of Law" (7 Nov 2020)

A Zoom Webinar book talk with author, Michael C. Davis:

Date & Time: 
Saturday, November 7, 2020 
9:30am – 11:00am (Hong Kong Time) 
Language: English 

This webinar is organized by the Faculty of Law at The University of Hong Kong and will be held via Zoom Meeting. Prior registration will be required. 

PROFESSOR MICHAEL C. DAVIS is in the Fall of 2020 a Visiting Professor in the Faculty of Law at the University of Hong Kong where he teaches core courses on international human rights. He is also currently a Global Fellow at the Woodrow Wilson International Center for Scholars in Washington DC and a Professor of Law and International Affairs at O.P. Jindal Global University in India (where he is in residence each spring). He was a professor in the HKU Law Faculty until late 2016. 

PROFESSOR ANDREW NATHAN - Class of 2019 Professor of Political Science, Columbia University. Nathan has served on the advisory boards of Freedom House, Human Rights in China, the National Endowment for Democracy and Human Rights Watch, Asia. 
MS SHARON K. HOM - is Executive Director of Human Rights in China (HRIC). She is a Professor of Law Emerita at the CUNY School of Law, an Adjunct Professor of Law at New York University School of Law (2017- present), and a Visiting Professor at The University of Hong Kong Faculty of Law (2019). 

DEAN FU HUALING – Warren Chan Professor in Human Rights and Responsibilities, Faculty of Law, The University of Hong Kong

For Registration, please click HERE
For inquiries, please email Shelby Chan at
To buy the book, please click HERE

Xu Qian on Phoenix from the Ashes: CPTPP Meaning for Asia-Pacific (and Global) Investment (AJWH)

"Phoenix from the Ashes: CPTPP Meaning for Asia-Pacific (and Global) Investment"
Xu Qian
Asian Journal of WTO Law and Health Policy, Volume 15.2
Published in October 2020
Abstract: Formerly known as the Trans-Pacific Partnership (hereinafter “TPP”), the Comprehensive and Progressive Agreement for TransPacific Partnership (hereinafter “CPTPP”) is a multilateral Free Trade Agreement (hereinafter “FTA”) signed by eleven Asia-Pacific Countries on March 8, 2018. The aim of the CPTPP is to boost international trade and investment in the Asia-Pacific region. Prior to the entry into force of the CPTPP, the U.S. withdrew from the TPP agreement in early 2017. In spite of this, the CPTPP nevertheless portrays a critical advance toward deeper trade and investment linkages in the Asia-Pacific region and also projects new and exclusive features for regional trade. This article provides a detailed and comprehensive analysis of the new pact and demonstrates how the CPTPP codifies many changes and clarifications made to investment law over the last years. Importantly, the normative quality and geographic scope of the CPTPP places the agreement amongst the most detailed and important investment treaties. In fact, the CPTPP may be read as a strengthening (or a de facto renegotiation) of North American Free Trade Agreement (hereinafter “NAFTA”) and many other agreements such as the 2010 ASEAN-Australia-New Zealand (AANZ) FTA. Last but not least, the TPP truly displays a systemic importance because it has the potential to become a multilateral treaty as the membership is open to new members willing to sign up to its terms.

Sunday, November 1, 2020

Douglas Arner et al on Decentralized Finance (Journal of Financial Regulation)

"Decentralized Finance"
Dirk A Zetzsche, Douglas W Arner, Ross P Buckley
Published in September 2020
Abstract: DeFi (‘decentralized finance’) has joined FinTech (‘financial technology’), RegTech (‘regulatory technology’), cryptocurrencies, and digital assets as one of the most discussed emerging technological evolutions in global finance. Yet little is really understood about its meaning, legal implications, and policy consequences. In this article we introduce DeFi, put DeFi in the context of the traditional financial economy, connect DeFi to open banking, and end with some policy considerations. We suggest that decentralization has the potential to undermine traditional forms of accountability and erode the effectiveness of traditional financial regulation and enforcement. At the same time, we find that where parts of the financial services value chain are decentralized, there will be a reconcentration in a different (but possibly less regulated, less visible, and less transparent) part of the value chain. DeFi regulation could, and should, focus on this reconcentrated portion of the value chain to ensure effective oversight and risk control. Rather than eliminating the need for regulation, in fact DeFi requires regulation in order to achieve its core objective of decentralization. Furthermore, DeFi potentially offers an opportunity for the development of an entirely new way to design regulation: the idea of ‘embedded regulation’. Regulatory approaches could be built into the design of DeFi, thus potentially decentralizing both finance and its regulation, in the ultimate expression of RegTech.

Friday, October 30, 2020

HKU Law Teachers Recognised by Teaching Excellence Awards 2019

Six HKU Law teachers were recognised in the 2019 HKU Teaching Excellence Awards for individual and group efforts.  

    Congratulations to the following colleagues:
  • Ms Alice Lee who won the University Distinguished Teaching Excellence Award. Alice has been teaching and researching copyright law for more than 20 years. She has obtained nine Teaching Development Grants and one KE grant, and received three university-level teaching awards including the University Distinguished Teaching Award 2019. She promotes and facilitates Teaching & Learning initiatives as Associate Dean (Academic Affairs) of the Law Faculty, as Chair of the University Teaching Exchange Fellowship Scheme, and as a Senior Fellow and an accredited mentor of the UK Higher Education Academy. Her most recent work is the project on 'the Copyright Classroom'. The copyright education videos, tailor-made for the tertiary, secondary and primary education sectors, are disseminated through “The Copyright Classroom – HKU” channel as well as Ms Lee’s education website

  • Ms. Julienne Jen who won the individual Outstanding Teaching Award. Julienne received the Faculty’s Outstanding Teaching Award in 2015 and is a Fellow of the UK Higher Education Academy. Julienne is interested in exploring different methods of experiential learning in her teaching and she now practises as a solicitor, offering pro bono legal advice at the University’s Clinical Legal Education course. She has co-authored various articles and spoken in conferences concerning professional legal education and experiential learning. She is a member of the Editorial Board of the Hong Kong Lawyer magazine. In addition, she contributes regularly to the LexisNexis Practical Guidance series and the Current Service of the Halsbury’s Laws of Hong Kong.
  • Team award: Professor Janny H.C. Leung (Leader) of the Faculty of Arts, Dr Marco Wan of the Faculty of Law, Dr Daniel Matthews of the Faculty of Law and Dr Anya Adair of the Faculties of Arts and Law for BA & LLB Programme Curriculum. This joint programme in Arts and Law offers an exciting double degree combining the critical and communication skills offered by a world-leading literary studies programme with comprehensive training in the law. This selective programme uniquely allows students to gain two degrees in a single five-year course of study: a Bachelor of Arts and a Bachelor of Laws.
  • Ms. Daisy Cheung who won the Early Career Teaching Award. Daisy is the Deputy Director of the Centre for Medical Ethics & Law and currently co-teaches Medico-Legal Issues for the LLB and JD/LLM programs, as well as tort and contract law.
The Teaching Excellence Awards Scheme (TEAS) aims to recognise, reward and promote excellence in teaching at the University. Under the Scheme, there are four categories of awards, viz. University Distinguished Teaching Award, Outstanding Teaching Award (OTA), Early Career Teaching Award (ECTA) and Teaching Innovation Award (TIA). Besides individual awards, both OTA and TIA comprise team awards to recognise and encourage collaborative effort and achievement in enhancing teaching and learning. All Faculties are encouraged to nominate colleagues who have made outstanding teaching and learning contributions for these awards. For ECTA, in particular, we hope to receive at least one nomination from each Faculty. Click here to view the list of 2019 TEAS Winners.

E-book of HKU Law Conference on Experiential Learning and Innovations in Legal Education

The Conference on Experiential Learning and Innovations in Legal Education 2019 was a major teaching and learning conference held at the University of Hong Kong from 18-19 October 2019 as part of the HKU Law's golden jubilee celebrations.  The edited transcripts of the conference proceedings are now available for download from the conference website. They can be accessed here and below.  

Session 1 & 2 – Clinical Legal Education
If you build it, will they come? Innovation and Sustainability in Clinical Legal Education
by Professor Jeff Giddings, Monash University
Current and Future Challenges for Clinical Legal Education
by Professor Peter Joy, Washington University
Experiential Learning in China: A Case Study of Clinical Legal Education
by Dr Pan Xuanming, Sun Yat-sen University
The CLE Programme at HKU: Any room for an Inter-professional Approach?
by Ms Julienne Jen, The University of Hong Kong
Strathclyde Law Clinic: Plugging the Gaps in Access to Justice in Our Community
by Ms Kathleen Laverty, University of Strathclyde Law Clinic
Professionalism in an Age of Dynamic Change? Teaching New Skills via Clinical Legal Education
by Professor Tania Leiman, Flinders University
Advancing Human Rights through Experiential Learning
by Ms Lindsay Ernst, The University of Hong Kong

Session 4 – Technology and Innovations in Legal Education
New Technologies and the Disruption of Legal Education
by Professor Daniel Rodriguez, Northwestern University
by Professor Yang Jianguang, Sun Yat-sen University
The Integration of Technology into Clinical Legal Education: An Exploration of the ‘Virtual’ Law Clinic
by Ms Francine Ryan, The Open University
Using Technology and the Media to Cultivate Authentic Problem-solving Skills in Undergraduate Law Students
by Professor Rick Glofcheski, The University of Hong Kong
LITE Lab@HKU – Future Lawyering to Serve Hong Kong’s Tech Startups, Social Entrepreneurs and Access to Justice
by Mr Brian W Tang, The University of Hong Kong

Session 5 – Experiential Learning and Innovations in Professional Education
An International, Interdisciplinary, Innovative Discussion Platform for Real Estate & Legal Education in HK
by Ms Alice Lee & Dr L H Li, The University of Hong Kong
Experiential Learning and Innovations in Professional Education – Interdisciplinary Roundtable (Li Ka Shing Faculty of Medicine)
by Professor C S Lau, The University of Hong Kong
Experiential Learning and Innovations in Professional Education – Social Work Practice Laboratory
by Dr Elsie Chien, The University of Hong Kong
Experiential Learning and Innovations in Professional Education – Interdisciplinary Roundtable (Faculty of Education)
by Dr Gary Harfitt & Ms Jessie Chow, The University of Hong Kong
Experiential Learning and Innovations in Professional Education – Interdisciplinary Roundtable (Faculty of Dentistry)
by Professor Michael Botelho, The University of Hong Kong